author: Mr. Justice Gridley Mr. Presiding Justice Barnes

text:
    Christine E. Pennington, Administratrix of the Estate of David H. Pennington, Deceased, Plaintiff and Appellee, v. Rowley Brothers Company et al., Defendants, on appeal of Frank Moll, trading as New City Iron Works, Appellant.
    Gen. No. 30,438.
    1. Appeal and error — disregard of question of variance raised for first time in reviewing court. A question of variance between the declaration and the proof, not raised at the trial, cannot be raised for the first time in a reviewing court.
    2. Negligence — proof of negligence as to one of several defendants charged with ■concurrent negligence as variance. Where a declaration charged that the injury and death of plaintiff’s decedent was caused by the concurrent negligent acts of one defendant in placing certain I-beams on the parkway of a street, and of other defendants in striking and dislodging one of such beams while decedent was standing thereon, no fatal variance resulted from a verdict against the defendant first named following a directed verdict for the remaining defendants, the declaration stating a good cause of action against such first-named defendant alone if the allegations respecting the other defendants were disregarded as surplusage.
    3. Death by wrongful act — negligence in placing steel hearns on street parkway where struck hy passing vehicle, and caus'al relation to injury of one standing thereon, as question for jury. In an action wherein it was alleged that the injury and death of the plaintiff’s decedent was caused by the concurrent negligent acts of one defendant in placing certain I-beams on the parkway of a street, and of other defendants in driving against and dislodging one of such beams while decedent was standing thereon while awaiting the approach of a street car about to stop opposite that point, it was a question for the jury whether the proximate cause of the injury was negligence in placing and leaving the I-beams in that position.
    4. Death by wrongful act — sufficiency of evidence to support finding of negligence in placing steel beams on street parkway where struck by passing vehicle, and of causal relation to injury of one standing thereon. In an action wherein it was alleged that the injury and death of the plaintiff’s decedent was caused by the concurrent negligent acts of one defendant in placing certain I-beams on the parkway of a street, and of other defendants in driving against and dislodging one of such beams while decedent was standing thereon while awaiting the approach of a street car about to stop opposite that point, evidence held to warrant the jury in concluding that the placing of the beams in the position stated, where they might be struck by the hub of a wheel of a passing vehicle was negligence and the proximate cause of the decedent’s injury and death.
    5. Death by wrongful act — contributory negligence of one standing on steel beam left in parkway where struck by passing vehicle as question for jury. In an action wherein it was alleged that the injury and death of the plaintiff’s, decedent was caused by the concurrent negligent acts of one defendant in placing certain I-beams in the parkway of a street, and of other defendants in driving against and dislodging one of such beams while decedent was standing thereon while awaiting the approach of a street car about to stop opposite that point, upon which he intended to take passage, it was a question for the jury whether the decedent was guilty of contributory negligence in standing upon such beam instead of upon the parkway.
    6. Death by wrongful act — sufficiency of evidence to support exonerating of contributory negligence one standing on steel beam left in parkway where struck by passing vehicle. Evidence in an action for the injury and death of the plaintiff’s decedent, alleged to have been caused by the concurrent negligent acts of one defendant in placing certain I-beams in the parkway of a street, and of other defendants in driving against and dislodging one of such beams while decedent was standing thereon while awaiting the approach of a street car about to stop opposite that point, upon which he intended to take passage, held to warrant a verdict exonerating decedent of contributory negligence in standing upon the beam under the circumstances.
    7. Death by wrongful act — sufficiency of evidence to show responsibility of general contractor for negligent placing of steel beams by subcontractor where struck by passing vehicle to injury of decedent. In an action against a general contractor for the erection of a building and a subcontractor for the furnishing and erection of the structural steel work thereof, based upon an injury and death resulting from negligently placing and leaving certain I-beams upon the parking of a street near the site of the building, no negligence on the part of such general contractor was shown by proof that when the employee of the subcontractor arrived with a truck loaded with such I-beams he asked the general contractor’s foreman where to unload them, and was told by such foreman to unload them “any place he wanted to,” nor by proof that such foreman signed the delivery ticket for such steel after it was unloaded and placed as aforesaid.
    8. Death by wrongful act — admissibility of evidence as to■ ordinance requiring hanging of red lanterns on piles of building material left in street at night, where material piled in parkway and accident occurs after sunset. In an action for an injury and death resulting from negligence in placing and leaving certain I-beams in the parkway of a street wherein it was alleged as an additional ground of recovery that the defendant negligently failed to comply with an ordinance requiring the display of red lanterns at each end of every pile of building material left in a street or alley, during the whole of every night it there remained, it was not error to admit such ordinance in evidence, either on the ground that such material was left in the parkway and not the street, or on the ground that the accident did not occur at night, where the evidence showed that the accident occurred after sunset, and that it was then “pretty dark.”
    9. Death by wrongful act — admissibility of testimony by plaintiff administratrix as to earning of decedent in lifetime and customary support of family. In an action for negligence resulting in the death of the plaintiff’s intestate it was not error to permit the plaintiff, who was the widow of the decedent, to testify as to the earnings of the decedent during his lifetime, and that she and their three children had been supported by him.
    10. Witnesses — propriety of excluding testimony of defendant in action for wrongful death as to- circumstances of accident where neither plaintiff nor next of kin nor any party in interest testifies for plaintiff on such matters. Where in an action by an administratrix based upon the negligently caused death of her intestate neither the plaintiff nor any of the decedent’s next of kin nor any party having a direct interest in the result of the suit testified as to the circumstances surrounding the accident resulting in the death, it was not error to refuse to permit the defendant to testify as to such matters, although the plaintiff was permitted to testify as to the earnings of the decedent prior to his death, and as to his support of her and their three children.
    Barnes, P. J., dissenting.
    Appeal by defendant from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed May 25, 1926.
    Rehearing denied and opinion slightly modified June 7, 1926.
    Gallagher, Kohlsaat, Rinaker & Wilkinson, for appellant.
    John H. Kay, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

This is an appeal from a judgment for $10,000 rendered after verdict against Frank Moll (doing business as New City Iron Works) by the superior court on April 11, 1925, in an action for damages under the Injuries Act [Cahill’s St. ch. 70] for negligently causing the death of plaintiff’s intestate. The accident happened on February 15,1923, and the death resulted one week thereafter. In addition to Frank Moll, the action was commenced against Rowley Brothers Company, Chicago & Western Indiana Railroad Company, Belt Railway Company of Chicago, Milk Producers’ Marketing Company, and Milk Producers’ Co-Operative Marketing Company, all corporations, and Henry L. Fiene. At the beginning of the trial in March, 1925, plaintiff dismissed the suit as to Rowley Brothers Company. At the close of plaintiff’s evidence the court instructed the jury to find all the other defendants, except Frank Moll, not guilty, and at the close of all the evidence the jury returned a verdict finding Moll guilty and assessing plaintiff’s damages at $10,-000.

The two defendant railroad companies were constructing a freight house on the north side of Grand Avenue, east of Cicero Avenue, Chicago. Rowley Brothers Company was the general contractor, and Frank Moll the subcontractor for the furnishing and erecting of the structural steel work, under written contract dated January 20, 1923. He had been asked to push his part of the work as fast as possible, and, on January 26, Herman Droege, his employee, delivered by truck 14 steel I-beams at the premises. The west end of the freight house, then being constructed, was about 100 feet east of Cicero Avenue, and the building extended 300 or 400 feet towards the east. Between the curb and the sidewalk there was a space or parkway about 6 feet wide. When Droege arrived at the premises with the steel he asked Rowley Brothers’ foreman, then in charge of the work, where he should unload it and the latter told him “any place he wanted to.” He drove his truck along the curb in front of the proposed building and so close to the curb that the wheels scraped it; then removed the stakes on one side of the truck and “threw the steel off” parallel with the curb onto the parkway so that the beams were piled “two high,” one upon another, and so that small spaces intervened between their ends. After the unloading he presented the.delivery tickets to said foreman and the latter signed them. Prior to the accident the steel was not moved thereafter by either Rowley Brothers Company or Moll, and it remained undisturbed in the positions as placed. All witnesses agree that no portion of any of the beams projected over the curb into the street — some testifying that the beams were about even with the curb and others that they were from one to three inches inside of the curb line.

On February 15, 1923 (20 days after the steel had been so placed), between 5:30 p. m. and 5:50 p. m., when it was “pretty dark,” defendant Fiene, a chauffeur employed by the Milk Producers’ Co-Operative Marketing Company, was driving at a slow speed a large truck, containing milk, west on the north side of Grand Avenue approaching Cicero Avenue. The street was congested with street cars and other vehioles, and many persons were waiting to board the street cars. There was one standing street car facing west near Cicero Avenue and back of it its trailer; then an automobile; then a second street car with its trailer and then Fiene’s truck, which he had stopped for a moment. Still a third street car was approaching from the east. Fiene had been driving close to the north curb of the street so as to allow one of the street cars to pass alongside. This was necessary because of the narrowness of .the space between the curb and the passing car. The traffic started moving again and Fiene moved his truck forward at a slow speed. After he had gone about 10 feet the hub-cap of the right front wheel of his truck, which cap extended over the curb from 2 to 3 inches, struck the east end of one of the I-beams, lying in the parkway, and moved it towards the west about a foot or two. The truck was then about 200. feet east of Cicero Avenue. There were no lights of any kind, indicating the presence of the I-beams and Fiene testified that he did not observe that they were lying near the curb. The deceased, Pennington, with plaintiff’s witness, Montesano, were standing on the I-beam, waiting to board a street car, when the beam was moved by the truck and they were “jarred off” and fell. In the fall Pennington’s left leg was crushed between the beam on which he had been standing and another beam just west of it. Pennington and Montesano and several others had endeavored to board one of the crowded street cars which had been standing west of the truck, but, the doors having been closed as the car moved forward, they stepped back onto the I-beam in the parkway to get out of the way of the truck, intending to board the third street car which was approaching behind the truck. Some of the other persons were standing on I-beams and some in the parkway, and it was a frequent occurrence for intending passengers to board street cars at about the place where the accident happened at times of similar congestions. After the accident Pennington was taken to a hospital, there treated, and on the seventh day his leg was amputated. Shortly thereafter he developed gangrene and septicemia and died as a result of the injuries he had received.

One of the contentions of counsel for Moll is in substance that the judgment should be reversed because plaintiff’s amended declaration, upon which the case was tried, charges that decedent’s injuries and death were caused by the concurrent negligent acts of Moll, in placing the I-beams where they were placed, and of Fiené, the driver of the truck, in hitting one of the beams, and that the verdict and judgment in favor of Fiene and his employer determined that the accident was not due to both negligent acts as alleged. It is argued that, after such verdict and judgment had been rendered at the close of plaintiff’s evidence, it was necessary for plaintiff, in order to proceed against Moll alone, to file an amended declaration charging that decedent’s injuries and death were proximately caused by Moll’s negligent acts alone. The contention and argument amount to the claim that there was a variance between the declaration and the proof. But the record does not disclose that any question of variance was raised at the trial and it is well settled that such a question cannot be raised for the first time in a reviewing court. Libby, McNeill & Libby v. Scherman, 146 Ill. 540, 549; Westville Coal Co. v. Schwartz, 177 Ill. 272, 278. Furthermore, after reviewing the two counts of the amended declaration to which Moll pleaded the general issue, we are of the opinion that each states a good cause of action against him and that the averments of negligence on the part of Fiene, the driver of the truck, may be regarded as surplusage. In Linguist v. Hodges, 248 Ill. 491, 495, it is said: “If those averments of the declaration be eliminated from each of the counts which refer to those defendants who were dismissed out of the case, by disregarding such averments as surplusage, there clearly remains sufficient in each of the counts of the declaration to state a good cause of action against the plaintiff in error, and the fact that the plaintiff in error remained charged, jointly with the defendants who were dismissed out of the case, with having committed the negligent acts which caused the injury to defendant in error is wholly immaterial, as in an action of tort under a declaration charging two or more defendants with jointly injuring a plaintiff there may be a verdict and recovery against one, only, of the defendants, the rule in this regard being different in actions of tort from what it is in actions upon contract.” See, also, Pierson v. Lyon & Healy, 243 Ill. 370, 375; Postal Telegraph-Cable Co. v. Likes, 225 Ill. 249, 262; Nordhaus v. Vandalia R. Co., 242 Ill. 166, 174.

The main contention of counsel for Moll is that the act of Moll, by his servant Droege, in placing the I-beams in the parkway where they were placed, and permitting them to remain there, was not a negligent act, and even if it be so considered, it was not the proximate cause of the injuries and death of Pennington. Under the pleadings and the facts in evidence, we think it was for the jury to say whether said act of Moll’s employees constituted negligence attributable to Moll, and whether it was the proximate cause of Pennington’s injuries and death. In Seith v. Commonwealth Electric Co., 241 Ill. 252, 259, in stating and discussing the rules for determining whether a negligent act or omission is the proximate cause of an injury, it is said:

“The negligent act or omission must be the cause which produces the injury, but it need not be the sole cause nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which, in combination with it, causes the injury, or if it sets in motion a chain of circumstances and operates on them in a continuous sequence, unbroken by any new or independent cause. The question is not determined by the existence or non-existence of intervening events, but by their character and the natural connection between the original act or omission and the injurious consequences. To constitute proximate cause the injury must he the natural and probable consequence of the negligence, and be of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the negligence. It is not necessary that the person- guilty of a negligent act or omission might have foreséen the precise form of the injury, but when it occurs it must appear that it was a natural and probable consequence of his negligence. If the negligence does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent independent act of a third person, the two are not concurrent and the existence of the condition is not the proximate cause of the injury. Where the intervening cause is set in operation by the original negligence, such negligence is still the proximate cause, and where the circumstances are such that the injurious consequences might have been foreseen as likely to result from the first negligent act or omission, the act of the third person will not excuse the first wrongdoer. * * * The test is whether the party guilty of the first act or omission might reasonably have anticipated the intervening cause as a natural and probable consequence of his own negligence, and if so, the connection is not broken.”

Tested by these rules we think that the jury were fully warranted under the facts and circumstances in evidence in finding that the act of Moll’s employee, in placing ope of the I-beams in the parkway so close to the edge of the curb that it might be struck and suddenly moved by the hub of a wheel of a passing truck or automobile, was the proximate cause of Pennington’s injuries and death. Although the beams were placed in the narrow space or parkway between the curb and the sidewalk, said space or parkway constituted a part of the public street (see City of Chicago v. O’Brien, 111 Ill. 532, 536; City of Bloomington v. Bay, 42 Ill. 503, 507), and which, as the evidence shows, was traveled upon frequently by persons seeking to board street cars, and the beams so placed constituted an obstruction in the street and a nuisance. See People v. City of St. Louis, 5 Gilm. (Ill.) 351, 371; Weick v. Lander, 75 Ill. 93, 96; Brennan v. City of Streator, 256 Ill. 468, 471.

And, on the question of Pennington’s alleged contributory negligence in standing on the beam instead of in the parkway or on the sidewalk at the particular time, we think that it was for the jury to say, under all the circumstances, whether in so standing he was guilty of contributory negligence, and that their verdict to the effect that he was not so guilty should not be disturbed. The evidence shows that he had attempted unsuccessfully to board one street car and had stepped back with others from the street and was waiting, after the truck had passed, to board another approaching street car.

Another of counsel’s contentions is that, if there was negligence in placing the beams where they were placed and allowing them to remain there, it was the act of Bowley Brothers Company and not Moll. It is argued that the control of the beams was and continued to be in Bowley Brothers. Company because when Moll’s employee arrived at the premises with them the foreman of Bowley Brothers Company told him, in response to his inquiry as to where he should unload them, to put them “any place he wanted to.” We find no merit in the contention or argument. By the terms of his contract with Bowley Brothers Company, Moll was not only to furnish the steel but to “erect” it in the proposed building. Bowley Brothers’ foreman in effect told Moll’s employee to use Ms own judgment as to where he should temporarily place the beams, and we think that his act in placing* them in the parkway should be considered as Moll’s act and not that of Rowley Brothers Company. The foreman gave no directions as to the particular place where they should be unloaded. The ownership of them and the custody and control of them, up to the time of the accident, remained in Moll. The act of the foreman in. signing* the delivery tickets did not relieve Moll from the duty he owed to the public not to place them where they would become an improper and, probably, a dangerous» obstruction.

Counsel further contend that the court erred in admitting in evidence a certain ordinance of the city of Chicago requiring* that “red lanterns shall be displayed and maintained during the whole of every night at each end of every pile of material in any street or alley and at each end of every excavation.” In the second count of plaintiff’s amended declaration Moll was charged with the negligent violation of this ordinance at the time and place in question. Counsel argue that the ordinance was inapplicable to the facts as shown by the evidence because (a) the piles of beams were in the parkway and not in the street and (b) it was not “night,” though pretty dark, when the accident happened, and that the admission of the ordinance in evidence was very, prejudicial to Moll. In our opimon both the contention and the argument are without merit. As previously stated herein the piles of beams were in a portion of a public street. They were in the narrow parkway between the curb and sidewalk. And another division of this Appellate Court has held' that such ordinance is applicable where piles of building material are placed by contractors on the sidewalk of a public street, adjacent to premises where a building is in process of erection. Girdzus v. Van Etten, 211 Ill. App. 524, 530. And the evidence shows that the accident in question happened after the sun had set on February 15, 1923. In Webster’s New International Dictionary “night’-’ is defined as “that part of the natural day when the sun is beneath the horizon, or the time from sunset to sunrise.” See also Century Dictionary, and United States v. Boston & M. R. R., 269 Fed. 89, 90.

During the trial plaintiff, the administratrix of the estate of deceased, and also his widow, was allowed to testify over objection concerning his earnings during his lifetime, and that she and her three children had been supported by him. It is urged that it was error to allow this testimony to be admitted. We do not think so. Brennen v. Chicago & Carterville Coal Co., 241 Ill. 610, 621; Mahlstedt v. Ideal Lighting Co., 271 Ill. 154, 164.

Nor do we think that the court erred in refusing to allow Frank Moll, defendant, to testify generally as a witness in his own behalf. Cahill’s St. ch. 51, ¶ 2; Sullivan v. Corn Products Refining Co., 245 Ill. 9, 13. Counsel for Moll contend in substance that, because plaintiff testified as a witness and because of the provisions contained in the third exception in said section 2 of the Evidence Act [Cahill’s St. ch. 51, ¶ 2], Moll was competent to testify regarding the occurrence or “transaction,” and the case of VanMeter v. Goldfarb, 317 Ill. 620, is cited in support of the contention. In that case Clarence Barker, a minor, received injuries by being struck by Goldfarb’s automobile and died. On the trial of the action brought by the administrator of his estate against Coldfarb under the Injuries Act [Cahill’s St. ch. 70], a brother of the deceased, Harold Barker, who was an eyewitness, testified for plaintiff as to the details of the occurrence, and the father of the deceased also testified, but merely to the age of the deceased, his previous state of health and the location of the accident. Thereafter during the trial the court allowed G-oldfarb to testify in Ms own behalf as to the occurrence. After a verdict and judgment had been rendered in his favor plaintiff appealed, contending that the trial court had erred in allowing Goldfarb to give his version of the occurrence. The judgment was affirmed by this Appellate Court and, on further appeal, by the Supreme Court. The last named court held that no error had been committed in allowing Goldfarb to so testify because Harold Barker, a person having a direct interest in the result of the suit, had testified on plaintiff’s behalf as an occurrence witness. The court said (p. 623): “The principal reason for the statutory exception is the supposed inability of the representative to oppose the statements of the adversary, but that reason is not applicable to a case like the one before us. Here the next of kin, the real party in interest, was an occurrence witness and gave his version of it. Manifestly it would be in direct violation of the purpose of the exception to bar the opposite party from giving his version of the occurrence. We are of the opinion that the word ‘transaction,’ as used in the statute, is used in a broad sense, and that it includes an occurrence like the one out of which this action arises.” During the trial of the present case, neither the plaintiff (widow) nor any of the next of kin or parties having a direct interest in the result of the suit testified for plaintiff as to the occurrence, and we do not think that the decision in the Goldfarb case supports counsels’ contention.

Finding no reversible error in the record the judgment appealed from against Frank Moll is affirmed.

Affirmed.

Fitch, J., concurs.

Mr. Presiding Justice Barnes

dissenting: While it was a question of fact for the jury, I cannot agree with the conclusion that plaintiff sustained the burden pf proving the exercise of ordinary care by deceased for his own safety in standing on material that might be moved, if hit by a passing vehicle, and thus incurring a danger as discernible and apparent to him as it must have been to the person charged with negligence in placing it there, without proof that there was not another safe way by which he could as readily have reached the parkway. For aught that appears to the contrary by any competent evidence he could have stood in or walked to a safe place between the ends of the piles of beams. To be sure one witness said “it was necessary to walk upon the iron beams to get out of the way of the truck.” But that was a mere conclusion. The fact could be determined only by whether — conceding his right to be in the street at that point for the purpose of boarding a car — he could have gotten onto the parkway where others were standing and waiting without stepping over and standing on the iron beams.


source: Caselaw Access Project

author: Mr. Justice Gridley

license: Public Domain

text:
    City of Chicago, Appellee, v. John Engdahl, Appellant.
    Gen. No. 30,554.
    Municipal corporations — allegation and proof of unpermitted open-air meeting on street as basis for conviction of holding such meeting upon ground abutting' street. A conviction of violation of an ordinance prohibiting the holding, without a police permit, of any open-air meeting upon any ground abutting upon any street, is not warranted upon a complaint alleging or upon proof showing the holding of such a meeting on a street without such permit.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Albert B. George, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Reversed.
    Opinion filed May 25, 1926.
    David J. Bentall, for appellant.
    Francis X. Busch, Corporation Counsel, and Samuel E. Pincus, Prosecuting Attorney, for appellee ; Eliot H. Evans, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

On June 10, 1925, in a quasi-criminal proceeding, after defendant had waived a trial by jury, the court found him guilty “of a violation of the ordinance described in the complaint,” and assessed a fine of $25 against him. His motions for a new trial and in arrest of judgment having been overruled, judgment was entered against him and this appeal followed.

It is alleged in the complaint that, on June 6, 1925, at the City of Chicago, defendant “was then and there unlawfully engaged in- or upon a street, North Avenue & Orchard Street in the City of Chicago and did hold an open air public meeting on a ground upon a street in the City of Chicago, and did then and there fail and neglect to obtain a permit in writing therefor from the Police Department of the said city, in violation of section 3703 of the Chicago Municipal Code of 1922.”

The ordinance mentioned reads in part as follows:

“3703. Processions and Open-Air Meetings — Application for Permit. No parade or procession shall be allowed upon any street or public way in the city, nor shall any open-air public meeting be held upon any ground abutting upon any street or public way in the city, until a permit in writing therefor shall first be obtained from the police department. Application to conduct such parade or procession or open-air meeting shall be made in writing to the superintendent of police by the person or persons in charge or control thereof, or responsible therefor, * * * and, in case of an open-air meeting, such application shall specify the place at which it is desired to hold such meeting, the purpose thereof and the name of the person, corporation or society in control thereof, or responsible therefor, the time at which such public meeting is to be held, and the probable duration there of. ***"

It appears from the complaint that the police officer, who signed and swore to it, “saw said defendant commit said offense,” and then and there arrested him. The bill of exceptions discloses that at the commencement of the hearing’, two days after the filing of the complaint, defendant’s attorney moved to quash the complaint on the ground that it did not state facts constituting a violation of the particular ordinance mentioned, but that the motion was overruled. The only witness on the hearing was the police officer. He testified that on June 6, 1925, at 9.30 p. m., defendant held an open-air meeting “on Orchard street about 50 feet away from North avenue,” in Chicago; that a crowd, numbering about 75 or 100 people, listened to' defendant as he spoke, and that defendant had no permit from the police department to hold the meeting. Thereupon defendant’s attorney. moved for defendant’s discharge upon several grounds, one of them being that “the evidence does not show that defendant is guilty of a violation of the ordinance in question,” but the motion was denied.

Among the several points here urged for a reversal of the judgment are (1) that the complaint does not state facts showing a violation of the ordinance and (2) that the evidence does not disclose a violation. In support of these points it is contended that the ordinance only prohibits the holding without a permit of an open-air meeting “upon any ground abutting upon any street or public way,” and does not prohibit such meetings being held in or upon a street, whilst the complaint charges that defendant without a permit held the meeting in question “upon a street,” and the evidence showed that he held the meeting without a permit “on Orchard street about 50 feet away from North avenue.” We feel constrained to hold, in view of the language of the ordinance in reference to open-air meetings, that both of counsel’s points are well taken and that the judgment must be reversed. The word “abut” is defined in the Century Dictionary as “to touch at the end; be contiguous; join at a border or boundary; * * * as his land abuts upon mine; the building abuts on the highway,” etc.

Accordingly, the judgment of the municipal court is reversed.

Reversed.

Baenes, P. J., and Fitch, J., concur.


author: Mr. Justice O’Connor

text:
    Edwin M. Levin, Appellee, v. Frieolin Pabst, Appellant.
    Gen. No. 30,867.
    1. Landlord and tenant — sufficiency of service of 60-day notice-under provisions of lease. Under a lease' providing that the “lessee shall vacate the above-mentioned premises upon a 60-day notice in writing, at any time during the term of the lease,” the notice contemplated is sufficiently served by leaving the same with some person over the age of twelve years, residing upon the premises, in view of Cahill’s St. ch. 80, ¶ 10.
    2. Landlord and tenant — sufficiency of 60-day notice under provisions of lease. Where a lease provided that the “lessee shall vacate the above-mentioned premises upon a 60-day notice in writing, at any time during the term of the lease,” a notice was sufficient, although not in all respects well drawn, where it explicitly stated that the landlord had elected to terminate the tenancy and demanded possession as of a date 60 days from the date of the notice.
    3. Fraud and deceit — failure to read lease before signing same as precluding defense of fraud in proemring signature, in action of forcible detainer based upon provisions thereof. No defense to an action of forcible detainer to recover possession of leased premises brought after expiration of 60 days from the service of a 60-day notice of intention to terminate the tenancy pursuant to the terms of a written lease, is afforded by proof that the tenant, after having occupied the premises under an oral lease from year 'to year for 15 years was induced by the landlord to sign a written lease containing the provision for termination on such notice, where he signed such lease without taking the opportunity provided to read it, although in so doing he relied upon the assurances of the landlord, with whom he had long been on friendly terms, that his occupancy would not be disturbed.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1926.
    Affirmed.
    Opinion filed June 2, 1926.
    Rehearing denied June 15, 1926.
    Gustav E. Beerly, for appellant; Mack, Lowes & Leopold, of counsel.
    Levisohn & Levisohn, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

On October 5, 1925, plaintiff brought an action of forcible detainer against the defendant to recover possession of certain premises in the city of Chicago, known as No. 540 Surf Street. There was a trial before a judge and a jury and at the close of all the evidence the court, on motion of plaintiff, instructed the jury to return a verdict in plaintiff’s favor, which was accordingly done. Judgment was entered on the verdict and the defendant appeals.

The record discloses that the defendant had occupied the premises in question for a period of about 20 years; that, during the last 15 years of that period, he had occupied the premises as tenant of a Mrs. Rogers, under an oral lease, she being the owner of the premises. This was a year to year tenancy and expired on the 30th of April of each year. The evidence further shows that on or about the 20th of June, 1925, Mrs. Rogers, who lived for many years next door to the premises in question, informed the defendant that she desired to see him and he went to her home. The defendant then testified that she then told him “that she was going away for a long trip, in fact, on a very long trip, and was likely to be gone for the balance of the year, and that she was going to turn her real estate affairs over to a certain agent by the name of Lasser, and that I should pay my rent to him. She asked me to come over once more, but either in the evening or very early in the morning, that she was going to give me something. I went over and after some more nice talk she handed me a paper, and said, ‘here is a lease, you can be perfectly safe’ ”; that she also gave him a copy of it and he took both of them back to his home, which was next door, signed the lease without having read it and returned it to Mrs. Rogers; that he kept the copy but had not read it. He further testified or offered to testify that Mrs. Rogers’ husband was a physician and that the two families visited back and forth for many years, and that Mrs. Rogers told the defendant that he could continue to occupy the house in question as long as Dr. Rogers practiced in Chicago, and that the doctor was still practicing in the city.

The evidence further shows that on or about the 20th of July, 1925, Mrs. Rogers assigned her interest in the lease to Hugh M. Garden of which the defendant was notified and that Garden on the first of August, 1925, assigned his interest in the lease to plaintiff Levin, defendant also being given notice of this fact and that he paid his rent after the assignments had been made to Garden and later to Levin. The evidence further shows that on the 4th of August, 1925, plaintiff served a notice on the defendant, which was addressed to the defendant and signed by plaintiff. It stated that plaintiff had elected to terminate defendant’s tenancy of the premises in question and continued as follows: ‘ ‘ And You Are Hereby Further Notified, To quit and deliver up the possession of said premises to me at the end of the present term, provided sixty days intervene, otherwise at the end of the sixty-day term, which commences next after the •service of this notice. You are therefore hereby accordingly required to surrender the possession of the within premises to me on the 4th day of October, 1925. Dated this 4th day of August, A. D. 1925.” On September 30th, defendant sent plaintiff his check for $200 in payment of the October rent. Plaintiff returned this check to the defendant and he later returned it to plaintiff together with a letter. This letter was dated October 2nd, 1925, and stated: “You are evidently misinformed regarding my tenancy of the premises which I now occupy. I have a perfectly good lease until May 1st and under my agreement it is not subject to any cancellation before termination. I am enclosing my check for $200 for the October rent.”

As stated, plaintiff brought suit October 5, 1925, and on the trial of the case tendered the $200 check to the defendant, but he refused to receive it. The evidence further shows that the notice of August 4 was not served personally on defendant, but there was an affidavit attached to the notice, made by plaintiff, wherein he swore that he served the notice on defendant on the 4th of August, 1925, by leaving a copy thereof with one Mary Doe, “A person above the age of twelve years, residing on or being in charge of the premises.” Plaintiff also testified in this respect that prior to the time he left the notice, he had called two or three times but was unable to find the defendant at home; that between 5 and 8 o ’clock in the evening of August 4, he went to defendant’s residence, called for the defendant, found he was not at home and that he gave the notice to the woman who came to the door; that he did not know her name, but that she was over twelve years of age; that she said Mr. Pabst was not there; that she did not know when he would be home and that he did not ask her what her name was, but gave her a copy of the notice and told her to give it to Mr. Pabst.

The lease was on a printed blank and contained a provision in typewriting, written in a blank space. This provision is as follows: “It is further understood and agreed that lessee shall vacate the above mentioned premises upon a sixty-day notice in writing, at any time during the term of this lease.” It is by virtue of this provision that plaintiff claims the right to terminate the lease. This is substantially all of the evidence in the record.

The defendant contends that the notice whereby it was sought to terminate the tenancy was not properly served because, since the provision in the lease above quoted did not specify the kind of notice that should be given in case it was sought to terminate the lease, the law required that the notice be served personally but that this was not done. A further contention, in this regard, is that the notice is insufficient even if it was given under the theory that the Landlord and Tenant Act [Cahill’s St. ch. 80] or the Forcible Entry and Detainer Act [Cahill’s St. ch. 57] applied. And it is finally said the notice is ambiguous and insufficient.

We think the service of the notice was sufficient under the provisions of section 10 of the Landlord and Tenant Act [Cahill’s St. ch. 80, ¶ 10]. That section provides: “Any demand may be made or notice served by delivering a written or printed, or partly written and printed, copy thereof to the tenant, or by leaving the same with some person above the age of twelve years, residing on or in possession of the premises.” We think this section applies, although there was no default in the payment of rent, because it points out a method whereby a landlord may serve notice on his tenant concerning the property occupied or rented by the tenant. It is not limited to those cases where there has been a default in the payment of rent or the like. The notice is not well drawn, as defendant contends, but we think it sufficient, because it explicitly states that plaintiff had elected to terminate defendant’s tenancy of the premises in question and demands possession by the 4th of October, 1925. We think the notice was such that plaintiff could well understand the demand made upon him and therefore it was sufficient.

The defendant further contends that a fraud was perpetrated upon him by Mrs. Rogers in securing his signature to the lease and that he was excused from reading the lease because of the friendship existing between the two families who had been neighbors for 15 years; that it was a mere trick on her part to secure the termination of the lease before April 30, 1926, and a number of cases are cited, which defendant contends sustain his contention, that such fraud may be taken advantage of in an action at law. We think the law in this State is contrary to defendant’s contention. In discussing this question, the Supreme Court in Papke v. G. H. Hammond Co., 192 Ill. 631, 635, said: “There may be fraud, which inheres in the execution of the instrument; that is to say, where the signer of the instrument is deceived into signing it by the belief that he is signing! something other than that which he does really sign. Fraud in the execution of the instrument is practiced, where the instrument is misread to the party signing it, or where there is a surreptitious substitution of one paper for another, or where, by some other trick or device, a party is made to sign an instrument which he did not intend to execute. In such cases, the nature of the instrument signed is not fully understood by the party signing it. ’ ’ And the court there further said that where there was such fraud it may be shown in an action at law, but as to other kinds of fraud mentioned in that case, the court pointed out that equity must be resorted to for relief. In the instant case we think there was no such fraud as may be interposed as a defense in a suit at law within the ruling laid down in the Papke case. The evidence shows that plaintiff called on Mrs. Rogers at her request and that she told him she was going to leave and be away for a long time and she requested him to sign the lease which she then handed to him, together with the copy. The defendant then took the two papers to his home, signed the original and returned it to Mrs. Rogers, keeping the copy. If he failed to read it, he cannot be relieved from its terms. He was an educated man, and according to his own testimony there was certainly no such fraud as would warrant this court in reversing the judgment appealed from.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

Thomson, P. J., and Taylor, J., concur.


text:
    P. J. Johnson, Plaintiff in Error, v. Hugh L. Marshall, Defendant in Error.
    Gen. No. 7,553.
    1. Direction of verdict and demurrers to evidence — insufficiency of declaration as "basis for direction of verdict for defendant. Where a defendant has failed to demur to a declaration, and has filed a plea of the general issue, the direction of a verdict for the defendant cannot be sustained upon the theory that the defendant’s motion to exclude the evidence and for a peremptory instruction challenged the sufficiency of the declaration.
    2. Physicians and surgeons — sufficiency of evidence to take to jury issue as to negligence in failing adequately to protect parts of patient’s face not under treatment from X-ray burns. Evidence in an action for injury by X-ray burns held to raise an issue for the jury as to the negligence of the defendant in failing adequately to protect from exposure to the X-ray those parts of the patient’s face not intended to be treated thereby.
    3. Physicians and surgeons — sufficiency of evidence to take to jury issue as to negligence in leaving room while patient exposed

      to X-ray. In an action for injury by X-ray burns evidence held to raise an issue for the jury as to the negligence of the defendant in leaving the room while the patient was exposed to the X-ray machine.
    4. Physicians and surgeons — evidence admissible in action for injury by X-ray burns as. warranting inference of admission of liability. In an action for injury by X-ray burns evidence that about a month after the giving of the alleged negligent treatment the defendant said: “Pete (referring to plaintiff), you know I will make it right. We have known each other all our life and been friends and you know I will make, it right, but wait. * * * Well, Pete, you got a bad one, didn’t you?” held to warrant an inference that defendant recognized that he was responsible for the injury complained of by plaintiff, and hence to be proper testimony to be considered by the jury on the issue of the defendant’s negligence.
    5. Physicians and surgeons — sufficiency of evidence to take issue of defendant’s negligence to jury under res ipsa loquitur doctrine. Evidence in an action for injury by X-ray burns held sufficient to take the question of the defendant’s negligence to the jury under the doctrine res ipsa loquitur.

    Error by plaintiff to the Circuit Court of Henderson County; the Hon. Walter G. Frank, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed and remanded.
    Opinion filed May 29, 1926.
    O’Harra, O’Harra & O’Harra, for plaintiff in error.
    Grier, Safford & Soule, for defendant in error.
   Mr. Justice Jett

delivered the opinion of the court.

This is an action for damages brought by P. J. Johnson, plaintiff'in error, against Hugh L. Marshall, defendant in error, for injuries sustained by the plaintiff in error occasioned by an X-ray machine operated by the said Marshall, defendant in error.

A jury trial was had and at the close of all of the evidence offered on the part of the plaintiff the court directed a verdict for the defendant. A motion for a new trial was made and by the court denied, and judgment rendered on the verdict, from which action of the court the plaintiff prosecutes this writ of error.

In this opinion the plaintiff in error will be called plaintiff, and the defendant in error, defendant.

The declaration consists of six counts. The first charges that the defendant is a practicing physician and has an office and place of business in the village of Stronghurst, Henderson county, Illinois, and practices his profession in and about said village; that on and for a long time prior to June 21, 1924, defendant had as a part of his office equipment an “X-ray machine” known as a “Kelly-Koett” machine; that on, to wit, June 21, 1924, and for many months prior thereto, defendant held himself out to the public as a physician able, capable and competent to give X-ray treatments with said machine to his patients and to others to whom he recommended this character of treatment; that it then and there became and was the duty of the defendant to have and keep the said X-ray machine in good condition and repair and in using the same to exercise due care and caution and not unnecessarily burn or injure the person or body of an individual receiving such X-ray treatment; that plaintiff then and there was a man of about 65 years of age, in good health, but troubled with a growth or obstruction in his nose and on, to wit, June 21, 1924, he called on defendant at his said office and employed the defendant as a physician to examine his nose and advise him with reference thereto and to treat and remove the said trouble; that the defendant then and there for reward as such physician examined the plaintiff’s nose and told him that he was troubled with polypi in his nose and that he, the defendant, could remove the same and cure him of said trouble by the use of said X-ray machine, and advised the plaintiff to submit to such treatment and told plaintiff there was no danger in such treatment and that it would do him no harm. Thereupon relying on the fact that the defendant was a practicing physician of long standing and that he was accustomed to giving treatments with said X-ray machine, and upon defendant’s statements and representations aforesaid, plaintiff did then and there follow defendant’s advice and put himself under the care and treatment of defendant and submitted to said X-ray treatment by defendant and that defendant then and there placed the plaintiff’s nose in conjunction with the said X-ray machine and subjected it to the rays therefrom; that defendant then and there wholly regardless of his duty and obligations in that behalf so negligently, carelessly and improperly administered such X-ray treatment with said machine to plaintiff’s nose that plaintiff’s face, eyes and eyelashes were unnecessarily and seriously burned and the tear ducts of his eyes were burned out, by means whereof plaintiff suffered great and excruciating pain and anguish and suffering, to wit, from thence hitherto and was and is permanently injured by and on account thereof and because of such injuries suffered as aforesaid plaintiff was compelled to and did pay out and expend divers and large sums of° money, to wit, $300 in and for trying to be cured of such burns and injuries.

The second count of the declaration is similar to the first and alleges that defendant then and there so unskilfully and negligently conducted himself that through his want of skill and care the plaintiff’s face was unnecessarily burned.

In the third count there is no allegation of negligence. This count alleges that the X-ray machine was operated by means of electricity and a powerful electric current and it was wholly under the control of the defendant. This count is based upon the doctrine of res ipsa loquitur, which plaintiff contends applies to the use of an X-ray machine under the facts as disclosed in this case.

The fourth count among other things alleges negligence in that there was no proper protection to that part of the plaintiff’s face not treated.

The fifth charges negligence in that defendant left the room with the X-ray turned on plaintiff’s face and permitted it to remain too long.

The sixth charges negligence in that the machine was not in proper condition.

The only evidence in the record is that offered on the part of the plaintiff.

The plaintiff lives on a farm about six miles from Stronghurst, in Henderson county. He is a man of the age of about 65 years. On June 21, 1924, he was suffering from a growth in the left nostril and on that date he went to the office of the defendant and requested him to examine his nose. The doctor made an examination and told him that it was polypi and that he could remove it with a knife or with the X-ray. Plaintiff told the defendant that he did not want to do anything that day for the reason that he desired to consult his family. The doctor asked, “What is the matter, are you afraid of getting hurt! It won’t hurt 'you a bit to remove it with the X-ray. ’ ’ The plaintiff then determined to have it removed by means of the X-ray and he went into an adjoining room where the X-ray machine was located and at the suggestion of the defendant he lay down on the table on his right side so that an application could be made to the left nostril. The doctor put some lead foil or lead paper of a dark grey color over his nose. His eyes were not covered sufficiently and in support of his contention, plaintiff says that when he opened his eyes he could see. The X-ray was then turned on and after a while the plaintiff was requested to turn over on his left side so that the X-ray could be applied to the right side of his nose. After the plaintiff turned over in order to have the treatment applied to the right side of his nose he inquired of the doctor how much longer would be required and he was informed that it would be about 10 minutes. Plaintiff says that when he made this inquiry of the defendant, the defondant was in another room while the machine was turned on. After having received the treatment the plaintiff returned to his home, and in the evening of that day his face began to swell and his eyes to get red and to run. On Saturday the plaintiff returned to the office of the defendant and was told to return on Thursday. When the plaintiff went back on the following Thursday the doctor was absent and the plaintiff did not see him until the next Saturday following which was two weeks after the treatment. At this time his cheeks had swollen and were beginning to crack open and his eyes were beginning to swell. The defendant looked at his face but gave him no further treátment. The record discloses that the defendant, after this visit of the plaintiff, was away from home for some time on a vacation. The plaintiff then consulted Dr. Huston of Burlington for treatment. Plaintiff did not see the defendant again until about the twenty-first of July at which time he told the defendant that he expected him to make it right and the doctor said: “Pete, you know I will make it right. We have known each other all of our life and been friends and you know I will make it right, but wait. Well, Pete, you got a bad one, didn’t you?”

In the latter part of July following the treatment in June, the plaintiff’s eyes and eyelids were inflamed and swollen to such an extent that he could not open them, and water or tears were running down his cheeks; his face and nose were covered with scabs. Before the application of the X-ray the plaintiff could read without difficulty, but since that time his eyes have been weak and blurry and pain him; and his .health has been greatly impaired since the treatment.

Dr. Huston, of Burlington, eye, ear, nose and throat specialist, testified he had had experience with polypi in the nose; that he became acquainted with the plaintiff on July 10, 1924; that on that date he examined his nose and eyes and face; that his nose, cheeks and lower parts of the forehead and eyelids were red and inflamed and swollen; that an examination of the plaintiff’s nose disclosed that the nasal passages were obstructed with large polypi; his eyelashes and eyebrows were absent and his cheeks and nose and lower part of his forehead had large cracks from which a water exudate was oozing. His tear ducts were obstructed.

Dr. Irvin testified he had been in the practice of medicine and surgery 26 years; that he had had an X-ray machine for a number of years; that during the course of his practice he had had occasion to observe persons who had been burned by an X-ray; that he met the plaintiff an August 24. His face, cheeks, nose and eyes were red and swollen; the scabs were scaling off a little over his cheek bones and nose; that he had treated persons who had been burned with an X-ray., “The condition in which I saw the plaintiff in August looked like some X-ray burns I have seen. When treating* the face with an X-ray machine the face has to be protected outside of the diseased part with a piece of lead. An X-ray machine is operated by electricity and run by a motor. In my operation in the handling of an X-ray machine the eyes of a person are properly protected by a lead foil. In my opinion if the part of the face which you do not want burned and will not treat is properly covered by a lead foil of proper thickness the X-ray will not penetrate it, burn the eyes, or burn that portion so covered. In my opinion from the experience that I have had in the operation of my own X-ray machine, and from what I have observed from the operation of X-ray machines, and from what I have read concerning the operation of them, it would not be proper treatment of a patient by X-ray for the operator to leave the room with the X-ray machine turned on the face of the patient.”

In view of what is disclosed by the record, did the court err in directing a verdict? It is the contention of the defendant that there is no proof of any negligence or unskillfnlness whatever to sustain the action under any count of the declaration. It is insisted that as some of the counts of the declaration fail to allege that the plaintiff was in the exercise of due care and caution, that the court under those counts was within the rule in directing a verdict.

It will be remembered that the plea of the general issue was filed and no demurrer was interposed to the declaration. To the suggestion that the declaration was fatally defective, and the motion to exclude the evidence and give the peremptory instruction was not erroneous it is sufficient to say that the defendant, by pleading to the merits, admitted the sufficiency of the declaration, and it is not readily perceived how its sufficiency could he substantially raised by a mere motion to exclude the evidence from the jury. We are aware of no practice authorizing such a course. If the defendant desired to question the sufficiency of the declaration he should have demurred. Swift & Co. v. Rutkowski, 182 Ill. 18-23.

It is further insisted by the defendant that this is a malpractice case and when the defendant as a physician has given a patient the benefit of his best judgment he is not liable for negligence even if his judgment is erroneous, unless the error is so gross as to be inconsistent with reasonable and ordinary skill and care; that no presumption of absence of proper skiff and attention arises from the mere fact that a patient did not recover, or that a cure was not effected; that the fact that a good result is not obtained is in itself no evidence of negligence or lack of care, but there must he affirmative proof of such negligence or lack of care, and that the injury complained of resulted therefrom. That the plaintiff was injured is not controverted. If the defendant in the operation of the X-ray machine in administering the treatment that occasioned the condition to the face, eyes and nose of plaintiff failed to protect that part of the face not treated, was the defendant guilty of negligence? The evidence shows that if the portion of the face not being treated is covered properly with lead foil it is a protection; that before applying the X-ray for treatment proper practice requires that that part of the face not being treated be covered sufficiently with lead foil or other substance as a protection. It was a question of fact for the jury to determine whether or not the necessary precautions had been taken and whether or not the defendant was guilty of the negligence charged in that respect.

It is charged in one count of the declaration that the defendant, after the X-ray had been turned on the plaintiff, left the room. The testimony discloses, as stated by Dr. Irvin, that in his opinion from the experience he had had in the application of his own X-ray machine and from what he had observed from the application of other machines, together with what he had read of X-ray machines, it would not be proper practice or treatment of a patient by X-ray for the operator to leave the room with the X-ray turned on the face of the patient. There is evidence in this record that tends to prove this count of the declaration.

It is the contention of the plaintiff that about a month after the treatment the defendant saids “Pete,” referring to the plaintiff, “you know I will make it right. We have known each other all of our life and been friends and you know I will make it right, but wait. * * * Well, Pete, you got a bad one, didn’t you?” It is a fair inference from this language that the defendant recognized the fact that, he was responsible for the injury complained of by the plaintiff. It was certainly proper testimony to go to the jury bearing on the question of the alleged negligence of the defendant.

Admissions of liability by a defendant constitute sufficient proof of negligence to entitle a plaintiff to go to the jury. Reed v. Kabureck, 229 Ill. App. 36, 40, 41.

Furthermore the plaintiff contends that the first, second and third counts of the declaration were framed upon the theory that the doctrine of res ipsa loquitur applies and that the facts bring the case within that rule. The defendant takes the position that it cannot apply in a malpractice case. By the state of the pleadings it is admitted that the defendant was possessed of the X-ray machine in question, and was operating it by means of electricity with a powerful electric current, and that the defendant placed the plaintiff in conjunction with said machine for the purpose of administering a treatment on the occasion mentioned in the declaration. Holcomb v. Magee, 217 Ill. App. 272-279.

The X-ray was under the exclusive control of the defendant, and there is evidence that the injury to the plaintiff is not a necessary result of a treatment by an X-ray machine. While the evidence is not as conclusive as it might be, yet we are of the opinion that the testimony is to the effect that the result that followed the use of the X-ray is not a necessary nor the known and usual result which follows an application of the character made by the use thereof upon the plaintiff. More precisely the doctrine res ipsa loquitur asserts that whenever a thing which produced an injury is shown to have been under the control and management of the defendant, and the occurrence is such as in the ordinary course of events does not happen if due care has been exercised, the fact of injury itself will be deemed to afford sufficient evidence to support a recovery in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care. 20 R. C. L. 187, sec. 156. The meaning of this maxim is that -while negligence is not, as a general rule, to be presumed, yet the injury itself may afford sufficient prima facie evidence of negligence, and the presumption of negligence may he created by the circumstances under which the injury occurred. Where negligence is thus presumed from the occurrence of the injury, the defendant is called upon to rebut the prima facie case by showing that he took reasonable care to prevent the happening of such an injury. Hart v. Washington Park Club, 157 Ill. 9,14,15.

Holcomb v. Magee, 217 Ill. App. 272, was an action on the case for malpractice. It was urged by the plaintiff that the doctrine of res ipsa loquitur applied and could be invoked in the case. At page 283 the court said:

“The parties disagree upon the question whether this case comes within the doctrine of res ipsa loquitur, so that the burning is itself evidence of negligence. There are authorities to that effect in cases of burning by X-rays. In Shockley v. Tucker, 127 Iowa 456, 103 N. W. 360, the court said: ‘We think the fact that plaintiff was severely burned is some evidence in itself that the treatment was improper, and it cannot be said that the verdict lacks support in this respect in the evidence.’ In Jones v. Tri-State Tel. & Tel. Co., 118 Minn. 217, 4 N. C. C. A. 832, 136 N. W. 741, the court said:

“ ‘The instrumentality was under the exclusive control of defendant, and there is sufficient evidence that injury to the subject is not a necessary result of the taking of an X-ray picture, if proper instrumentalities and proper care are used. Certainly we cannot say that plaintiff’s injuries were not the result of the exposure. These facts are enough to make the case one of res ipsa loquitur, and to make the burden on defendant to show that there was no negligence. Defendant did not show this, at least conclusively. Indeed, there was sufficient evidence of negligence, even without the res ipsa rule, to make a case for the jury. ’ In George v. Shannon, 92 Kan. 801, 6 N. C. C. A. 1086, 142 Pac. 967, the court said, speaking of a given instruction:
“ ‘Reduced to a sentence, it is this: If the taking of such pictures in a proper and careful manner does not necessarily result in injury, then the fact that injury did result is some evidence (which may be rebutted) that proper care and skill were not exercised. We find no error in the instruction. ’ ”

When the fact that plaintiff was burned severely is taken in connection with the assurance given by the defendant to the plaintiff that it would not hurt him and with the testimony of Dr. Irvin which tends to prove that the X-ray machine with ordinary skill will not burn a patient, at a point other than intended, we think the testimony fairly tends to show that plaintiff was burned because of a lack of ordinary care in the operation of the machine. The showing made, notwithstanding the rule contended for by the defendant in malpractice cases, is sufficient in our opinion to authorize the submission of the question of fact to the jury for them to determine whether or not the defendant was guilty of the negligence alleged in the declaration or some count thereof. We are of the opinion that the maxim res ipsa loquitur can be invoked.

We, therefore, conclude that the court erred in directing a verdict for the defendant and the judgment of the circuit court of Henderson county is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Niehaus

text:
    The People of the State of Illinois ex rel. V. E. Meeker, Appellee, v. City of Casey et al., Appellants.
    Gen. No. 7,897.
    1. Mandamus — parties. It is proper practice in mandamus proceedings to join as parties all persons whose cooperation is required to secure the legal rights for the attainment of which the proceedings are instituted.
    2. Mandamus — propriety of petition ashing direction of writ against city and its mayor by name. A petition for a writ of mandamus to compel the removal of obstructions to a city street was not erroneous because asking that the writ be directed to the city and its mayor, by name, although it was possible that the mayor might not be in office when the writ issued.
    3. Mandamus — sufficiency' of evidence to■ designate location of street from, whicfh removal of obstructions sought. Evidence in proceedings to secure mandamus to compel a city and its officers to remove certain obstructions from a public street held sufficiently to designate the location of the street in question.
    4. Mandamus — propriety of writ directing city officials to cause removal of obstructions from street. A writ of mandamus commanding a city and its mayor and council to remove or cause to be removed certain obstructions upon a designated street held not open to the objection that it commanded the officers therein named to remove the obstruction with their own hands.
    5. Mandamus — propriety of remedy to secure removal of obstructions from street. Mandamus is an appropriate remedy to compel a city to remove an obstruction upon its streets.
    Appeal by defendants from the Circuit Court of Clark county; the Hon. Walter Brewer, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed April 15, 1926.
    Rehearing denied June 22, 1926.
    Arthur Poorman, S. M. Scholeield and H. It. Snavbly, for appellants.
    Islet & Yelvington, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

In this case, The People ex rel. V. E. Meeker filed a petition in the circuit court of Clark county, praying for a writ of mandamus against W. M. Abraham, mayor of the city of Casey, the city council of the city, Maud Roberts and Sarah A. Roberts, in order to compel the removal of a brick porch, which is attached to, and a part of a front structure of the Delite Hotel in the city of Casey, and to cause the removal of a brick wall about two feet high at the front of a parking space used as a bumper rail for automobiles, alleged to be obstructions in a public street adjacent to the hotel. And the hotel property is alleged to be owned and maintained by Sarah A. Roberts and Maud Roberts.

There was a jury trial to determine the issues of fact involved, and at the close of the evidence the trial court directed the jury to find the issues in favor of the relator, and the jury returned a verdict accordingly. Thereupon the court ordered the writ commanding the appellants to proceed to remove, or cause the removal of, the obstructions referred to. This appeal is prosecuted from the order.

Several points are raised on appeal which question the legal propriety of the proceeding, and the validity of the order for the writ. It is urged that it was error to include Sarah A. Roberts and Maud Roberts, who are private individuals, as defendants in the petition, and parties to the suit. It is a proper practice in mandamus proceedings to include all persons as parties whose cooperation is required to secure the legal rights for the attainment of which the proceedings are instituted. Board of County Com’rs of Labeth Co., Kansas v. Moulton, 112 U. S. 223; Farnsworth v. Boston, 121 Mass. 173; Attorney General v. Boston, 123 Mass. 460; The King v. Mayor, 8 Mod. 111; The King v. Mayor, 1 Ld. Raym. 559. It is apparent from the provision in section 7 of the Mandamus Act [Cahill’s St. ch. 87, ¶ 7] that all persons who shall appear to have or claim to have any right or interest in the subject matter involved in the proceedings should be made parties defendant, and summoned in the cause. People ex rel. Staver v. Elgin Motor Car Corp., 209 Ill. App. 601. Appellants also contend that the writ should not have named Mayor W. M. Abraham, “inasmuch as he might not be mayor when the writ should be executed." This point is covered by the case of People ex rel. German Ins. Co. of Freeport v. Getzendaner, 137 Ill. 234. It was there pointed out that this contention “loses sight of the controlling fact, here, that the duty to pay is that of the town, as a corporate body, and not of individuals, although that duty can only be discharged through the acts of individuals. The failure to pay is that of the corporate body, and it is because of that failure only, and to compel the performance of the corporate duty in that respect, that a mandamus will be awarded. Were a like duty required to be performed by a natural person instead of by an artificial person, under such circumstances that mandamus would lie, no one would suppose it necessary to prosecute a separate suit to enforce the performance of each distinct step necessary in the collection and paying over of the money; and yet there can, in theory, be no difference between a natural and an artificial person, in this respect. The different officers appointed by law as the agencies and instrumentalities through which corporate action shall be taken, are to the corporate body, but as members of the natural person, through which he or she can alone act, are to that person; and in either case, to coerce action of the parts it is only necessary to inquire, is there a right to coerce action of the person, either natural or artificial, the person being responsible for the failure to act. It would, therefore, in the present ease, doubtless, have been sufficient to have filed the petition against the town, without naming individuals, to have obtained a peremptory mandamus to each of the agencies and instrumentalities through which it must act to make payment of the claim due the relator; but it was competent to make the individuals whose duty it is to act, parties, as was here done. (Village of Glencoe v. The People, 78 Ill. 386; Sheaff v. The People, 87 Ill. 189). But it is, obviously, in either event, the action of a corporate body, and not the action of natural persons, as such, merely, that is to be enforced.”

It is further insisted that the evidence in this case is clearly insufficient in locating the street. But the proofs in the record leave no doubt about the fact that the obstructions which the writ requires to be removed are in East Main Street, a public street running along the front of the hotel in question. Counsel for appellants appear to be under the impression that the writ ordered will require the members of the city council to remove the obstruction with their own hands. This however is not the purpose of the writ, but only to coerce action on the part of the officials of the city, the mayor and the members of the city council, in obedience to the writ, within the line of duty, to effectuate the removal of the encroachments and obstructions referred to. By the tenth paragraph of section 1, article 5, chapter 24, Cahill’s Illinois Revised Statutes, it is distinctly pointed out as one of the duties of the City Council, “to prevent and remove encroachments or obstructions” upon public streets.

Appellants also contend that mandamus is not the proper remedy legally available to the relator to effectuate the purpose of the proceeding. ' All the questions raised concerning the legal propriety of resorting to mandamus as a remedy for the removal of obstructions and encroachments upon public streets, are answered and settled contrary to appellants’ contention in People ex rel. Burton v. Corn Products Ref. Co., 286 Ill. 226.

The judgment and order is therefore affirmed.

Affirmed.


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    Edna M. Russell, Appellant, v. E. H. Fagerburg et al., Appellees.
    Gen. No. 7,922.
    1. Guardianship — prerequisites to binding ward, by settlement with guardian after attaining majority. In order to bind a ward by a transaction with her guardian, even after she has attained her majority, it must appear that she acted with deliberation and with full knowledge of all the material facts.
    2. Guardianship — presumption as to influence of guardian in respect of transactions with ward. Because of the confidential-relations existing between a guardian and his ward a presumption arises, as to transactions between them, that the ward acted under the influence of the guardian, and hence such transactions, if prejudicially affecting the interests of the ward, will be held constructively fraudulent.
    3. Guardianship — presumption as to influence of guardian in respect of transactions with ward after termination of guardianship. The presumption that a ward, in respect of transactions with her guardian, acted under his influence, applies likewise even after the guardianship has ended, when there has not been a final accounting and settlement of the guardianship affairs, and such transactions, if injurious to the interests of the ward, will be set aside, unless shown to have been the deliberate act of the ward with full knowledge of her rights.
    4. Guardianship — burden of proof as to consent and knowledge of ward in respect of settlement with guardian after 'attaining majority. Where a transaction between a guardian and his ward, consummated after the ward has attained her majority but before the settlement of his accounts, is attacked in equity as injurious to the ward’s interests, the burden is upon the guardian to prove the circumstances of knowledge and free consent on the part of the ward.
    5. Guardianship — jurisdiction of equity to compel accounting by guardian after approval by county court of settlement and report. Equity has jurisdiction of a suit to- compel an accounting by a guardian to his ward notwithstanding the county court has approved a settlement of the guardian with the ward and his final report of the guardianship, where the bill alleges that the settlement, which was injurious to the ward, was made by her in reliance upon false representations of the guardian, and it appears that the ward has ne adequate remedy at law for relief against the guardian and his sureties.
    Appeal by plaintiff from the Circuit Court of Ford county; the Hon. Frank G. Lindley, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed and remanded with directions.
    Opinion filed April 15, 1926.
    Rehearing denied June 22, 1926.
    Maurice B. Stern and Oglevee & Franklin, for appellant.
    Schneider & Schneider, for appellees.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

In this case a bill in equity for accounting and relief was filed in the circuit court of Ford county by the appellant, Edna M. Bussell, against E. H. Fagerburg, guardian of the appellant, and Charlotte- M. Fagerburg and H. B. Shaw, who are sureties on the guardian’s bond. The bill alleges that E. H. Fagerburg was appointed guardian of the appellant by the county court of Ford county, January 30, 1920; that he filed his guardian’s bond in the sum of $25,000, on which Charlotte M. Fagerburg and H. B. Shaw were sureties; that letters of guardianship were issued thereupon February 3, 1920; that the appellant was a minor of the age of 14 years at that time. The bill further alleges that the guardian neglected to file an inventory of the assets which came into his hands as guardian; that he filed no report in the estate until January 23, 1924, which was the final report after the appellant had arrived at her majority; that the guardian received large amounts of money belonging to the appellant, as shown by the final report, but that appellant does not know whether said report of receipts of moneys by the guardian is correct or not, and that the said report of receipts does not show from what sources the same are received. It is also alleged that the guardian, in disregard of his duty and obligations, wrongfully, and in direct violation of the statute, loaned large sums of money belonging to the appellant, without the order of the court, and took promissory notes of borrowers without mortgage security ; that appellant reached her majority on January 7, 1924; that on January 23, 1924, the appellee Fagerburg as guardian filed an alleged final report as guardian, containing a list of receipts and disbursements purporting to show the amount received by him as guardian, and the amounts of money paid out by him as guardian, and purporting to show a balance due her of $6,750.31; that at the time of filing the report, he represented to the appellant that the note of the First National Bank of Paxton, Illinois, for $200, and a note signed by A. T. Carlson and others for $32,500, on which there was credited $1,500, and a balance due of $1,000, were perfectly good and safe investments of the funds belonging to the appellant; that she does not know whether the note signed by the First National Bank of Paxton, and turned over to the appellant by the guardian, is good or not, and that A. T. Carlson, maker of the $2,500 note, on which there was due $1,000 plus interest, was adjudicated a bankrupt in the United States Federal Court at East St. Louis, March 11, 1924. It is also alleged in the bill that she had no counsel of her own in the matter of the final settlement of the guardianship, and that she had no business experience, and relied upon the representations of her guardian as to the financial responsibility of the makers of the notes referred to.. It is also alleged in the bill that the receipt signed by the appellant, which is attached to' the final report of the guardian, was obtained from her by the guardian by false and fraudulent representations made by the guardian, upon which she relied; that she is still in possession of the note of the First National Bank of Paxton, and the Carlson note, and that she is desirous and ready and willing to turn said notes back to Fagerburg at such time as the court may direct. The prayer of the bill is that the appellee Fagerburg may be required to account fully and completely for all moneys received by him as guardian and that he be required to take back the notes in question and be required to pay appellant the amounts due, with interest thereon, and that the appellees Charlotte Fagerburg and H. B. Shaw, as sureties on the guardian’s bond, may be required to pay the amount found duel to her, if the guardian shall fail to pay the amount, and that she have such other and further relief in the premises as equity may require. The appellees filed an answer to the bill, and the case was thereupon referred to the master, who, after hearing the evidence, made a report finding that the appellant was not entitled to the relief sought in her bill of complaint, and that the bill should be dismissed for want of equity. Exceptions were filed to the master’s report, and upon the hearing before the court, the exceptions were overruled, and a decree entered in accordance with the findings of the master, and dismissing the bill for want of equity. This appeal is prosecuted from the decree.

The evidence taken substantially sustains the averment of the bill of complaint, but the principal controversy in this case concerns the Carlson note, in which the guardian had invested the sum of $2,500 of his ward’s money, and upon which note there was a balance due of $1,000. This note was six months past due at the time Fagerburg made his final report as guardian, in accounting for the funds of the guardianship, and at the time of settlement of the guardianship matters. The evidence shows that Fagerburg at this settlement turned over the notes referred to, which had been taken by him for investments of the ward’s money, to the appellant in payment and discharge of the amount due from him as guardian, according to his report, and that the appellant accepted these notes concerning which she knew nothing, as a part of that settlement, but that she accepted the Carlson note upon the representation by her guardian; that the note would be paid by Carlson the following month of February; and upon the faith of that representation accepted. The evidence also shows that the note was not paid, and that on the 11th day of the next month (March) Carlson was adjudged to be a bankrupt.

It is contended that the settlement made by her guardian is legally binding on the appellant because it was made after she had become of age. It is clear from the authorities, however, that a settlement brought about by a guardian with his ward, under the circumstances disclosed by the evidence, will not be allowed to operate as a bar to obtaining relief in a court of equity. To bind the ward in a transaction with the guardian, it must be shown that she acted after the termination of her legal disability with deliberation, and with full knowledge of all the material facts. From the confidential relation existing between the guardian and his ward, it will be presumed that the ward acts under the influence of the guardian, and all transactions and dealings with him, prejudicially affecting the interests of the ward, will be held, to be constructively fraudulent. This presumption continues even after the guardianship has ended, when the matters of accounting between the guardian and the ward have not yet been fully settled, and transactions between them, during the presumed influence, which are injurious to the interest of the ward, will be set aside, unless shown to have been the deliberate act of the ward after a full knowledge of his or her rights. In all such cases, the burden rests upon the guardian to prove, the circumstances of knowledge and free consent on the part of the ward. Gillett v. Wiley, 126 Ill. 310.

It is contended that the action of the county court approving the settlement made by the guardian in this ■case, and approving the guardian’s report and the subsequent orders in connection therewith, are res adjudícala; that the appellant should have pursued a remedy which the law provides, by appealing from the orders of the county court, and that therefore there is no occasion for the interference of a court of equity. It is apparent that the remedy at law pointed out was not adequate for appellant to obtain the relief against her guardian, and the sureties on his bond, in compelling the full and proper accounting which she was entitled to under the averments of her bill of complaint, and for the alleged wrongful acts and deceptions of her guardian. The jurisdiction of a court of equity to grant relief in cases of this character is well established. ‘ ‘ Guardians are regarded as trustees, and may be compelled in chancery to render an account before, as well as after, the termination of the guardianship. (Bond v. Lockwood, 33 Ill. 212.) * * * The provisions of the statute in relation to guardians were not designed as a complete code, but were enacted to confer upon the county court power to appoint guardians and to regulate their conduct in accordance with their duties at common law. ’ ’ Chapman v. American Surety Co., 261 Ill. 594; Schmidt v. Shaver, 196 Ill. 108; Hayes v. Massachusetts Mut. Life Ins. Co., 125 Ill. 626.

For the reasons stated, the decree is reversed and the cause is remanded with directions to require the appellee, E. H. Fagerburg, to make a full and proper accounting as guardian in accordance with the prayer of the bill, and pay to the appellant the amount found to be due the appellant upon such accounting, with interest, and in case, of the guardian’s failure to pay the same, to require appellees Charlotte M. Fagerburg and H. B. Shaw, to pay the same as sureties on the guardian’s bond.

Reversed and remanded with directions.