text:
    Eugene Schiermeier, Minor, by Theodore Schiermeier, His Father and Next Friend, Appellant, v. Mrs. Margaret Hoeffken et al., Copartners, Trading as Hoeffken Brothers Supply and Construction Company, Appellees.

      Opinion filed March 1, 1941.
    Rehearing denied April 10, 1941.
    McGlynn & McGlynn, of East St. Louis, for appellant; John J. Hoban, of counsel.
    Farmer, Klingel & Baltz, of Belleville, and Baker, Lesemann, Kagy & Wagner, of East St. Louis, for ap-pellees.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from the circuit court of St. Clair county, Illinois, in which court a motion for directed verdict on behalf of appellees (hereinafter called defendants), and against the plaintiff, was sustained by such court, and the jury was directed to return a verdict in favor of defendants and against the plaintiff. It is from the judgment upon such verdict that the plaintiff appeals.

The cause was tried below on the amended complaint filed by plaintiff, in which the defendants were charged with negligence which resulted in plaintiff’s injuries. Two additional counts were filed by plaintiff after the plaintiff’s evidence had been submitted and prior to the allowance of the motion for directed verdict by the trial court. The additional counts which were filed were predicated on the so-called “attractive nuisance” doctrine, and on the charge that the defendants were guilty of wilful and wanton conduct toward plaintiff.

The facts, as disclosed from plaintiff’s evidence which was presented in the trial court below, showed that the plaintiff was 11 years of age at the time of the accident which was made the basis of the action. In company with two other young children, the plaintiff had heard the noise of machinery at work on Main street in the city of Belleville where the defendant contractors were engaged in tearing up a street through the use of a certain steam shovel. It was shown that the children decided to go and watch the work which was being done by the defendant contractors. When they arrived at the street in which the defendants were tearing up and removing the brick, the plaintiff and his companions watched the work from a corner for a while and then walked up Main street and went up on a terrace of a lawn on certain private premises, facing on the street. They sat on the terrace, plaintiff sitting in the middle, with his sister and another little girl sitting on either side of him. The operations which were being conducted by the defendants, consisted chiefly of the use of a steam shovel to scoop up the bricks from the street and dump such bricks in trucks which were standing there.- At times the scoop shovel would become too full and bricks would fall over the side, while at other times the trucks would become too full and bricks would roll from the trucks into the street. It was shown that there was mortar on the street from between the bricks as they broke off, and sand and soft dirt were under the bricks. Some of the bricks which were laying in the street, as the result of falling from the trucks or the scoop of the steam shovel, were whole, and some were broken and of varied sizes. Defendants, in the process of tearing up the street, used a number of trucks. When a truck was loaded it would leave and another would take its place. One truck was standing with its motor running while it was being loaded by the steam shovel. After it had been loaded and sought to pull away, it could not get traction on the street on which the bricks and parts of bricks, and mortar and sand, had been spilled. When such truck sought to get away, the truck driver raced the motor and the wheels spun. It was shown that the wheels were equipped with dual tires on each side of the rear, and that the spinning of the wheels at a rapid rate, caused a portion of a paving brick to become wedged between the dual tires of one of the wheels and as it spun around, it acted as a slingshot, hurling a portion of a brick a distance of more than 30 feet from the street, up into the yard, where it struck the plaintiff with great force and caused very severe injuries to his skull. The force was so great that the brick was in the air from the time it left the wheel of the truck, until it hit plaintiff. After it struck the plaintiff, such half brick flew back ■into the driveway that runs along the west side of the yard in which plaintiff was sitting.

There was evidence that the agents of the defendants could observe the manner in which the work was being done, and that the driver of the truck in question was standing on the ground watching the operations and could see the brick and mortar being spilled to the ground. The workmen could also see the children who were sitting in the yard watching the operations. One of plaintiff’s companions testified that other children were in the yard when plaintiff and his two companions arrived and took their positions on the lawn terrace. They were not cautioned, warned, or admonished in any manner. It was also shown that defendants had placed a barricade across the street so that vehicular traffic could not enter upon the street, but there was no barricade in the vicinity where plaintiff was hurt, and the evidence was to the effect that there were no barricades along the sidewalk, or that the barricade referred to pertained to anything other than vehicular traffic. There was also evidence to the effect that a customary manner of doing the work in which the defendants were engaged, was to have a workman with a hand shovel clear away the debris from under the truck before it was moved. No such methods were used by defendants to remove or attempt to remove the debris before the truck was started, or before any of the other trucks would drive away. Plaintiff was shown to have suffered serious and permanent injuries.

At the conclusion of the testimony on behalf of plaintiff, the defendants presented a motion for directed verdict to find the defendants not guilty, principally on the theory that the plaintiff was an idler, trespasser, and mere “onlooker,” and that the defendant owed plaintiff no duty. Defendants likewise contended that the doctrine of attractive nuisance had no application to the situation before the court, and that the evidence failed to show any breach of duty on part of the defendants. The trial judge sustained the contentions of defendants, and allowed the motion for directed verdict, and judgment was thereupon entered in bar of the action arid against plaintiff for costs.

Plaintiff contends that the court erred in allowing such motion and in the entry of judgment, and sets up as a basis for reversal that the acts of the defendants constituted actionable negligence in favor of plaintiff, and as against defendants; as well as the further contentions that the attractive nuisance doctrine is involved, and that defendants were guilty of wilful and wanton conduct. In view of what we have to say about the first of such contentions, it is unnecessary to consider either the contention with reference to the attractive nuisance doctrine, or the contention that defendants were guilty of wilful and wanton conduct.

On motion for a directed verdict, the evidence must be considered in the light most favorable to the plaintiff, and plaintiff must be given every reasonable intendment favorable to him (Blumb v. Getz, 366 Ill. 273; Shutan v. Bloomenthal, 371 Ill. 244). The question therefore arises, in connection with the determination of the rights of plaintiff as against defendants, of whether or not there was a duty on part of defendants to protect plaintiff from the injury of which he complains, and whether there was a failure on part of defendants to perform that duty, which resulted in such injury (Overstreet v. Illinois Power & Light Corp., 356 Ill. 378).

In this connection it is contended by the defendants that the sole duty which they had to the plaintiff was to refrain from wilful and wanton injury to him, on the theory that plaintiff was a trespasser, idler, or a bare licensee, under the doctrine of such cases as McDermott v. Burke, 256 Ill. 401, and Darsch v. Brown, 332 Ill. 592.

It is noted that the injury to plaintiff-was sustained while he was seated on premises which did not belong to defendants, or to plaintiff, and so far as the record establishes, as to which he was, at most, an invitee, but more probably, a licensee or trespasser. It is also shown by the record that defendants had no rights in the premises,' and that their status in so far as the premises in which plaintiff was seated at the time he was injured, was certainly no better than was that of plaintiff, so that if plaintiff is characterized as a licensee or trespasser in the premises upon which he was injured, the defendants must likewise be viewed as licensees or trespassers on such premises to the extent to which they entered the same when the brick which was thrown by the defendant’s truck struck the plaintiff.

The problem before this court in determining whether or not defendants owed a duty to plaintiff, is dependent upon whether or not the rule which has been adopted in other cases (McDermott v. Burke, supra; Darsch v. Brown, supra), to the effect that the only duty to trespassers, idlers, and bare licensees is that of refraining from wilful and wanton conduct resulting in injury to them, is to be extended so that it may be set up as a defense' by others than the owner of the property upon which the injury was sustained.

We have been cited to no Illinois case which has passed on the problem before this court, nor have we been able to discover any cases in this State which passed upon it directly. Defendants, in their brief in this court, do cite the case of Peters v. Howenstein, 5 Ohio App. 160, upon which they place great reliance. In that case, which was decided in 1916 and in which no precedents are cited, action was instituted for a recovery of damages for the death of an adult who was killed by the bursting of the boiler of a traction engine which was being operated in a lane near a field where decedent was standing at the time of the explosion. Decedent was shown to have come to watch the operation of the engine merely out of curiosity, and the Ohio Court of Appeals, without analyzing the problem with reference to the status of defendant as relating to the place where he was standing at the time of the accident, concluded that the only duty which such defendant owed to plaintiff’s decedent was the duty of not wantonly or intentionally injuring him. Such case, this court feels, cannot be taken as a precedent in the instant case in view of certain well-established principles which have been determined by other courts of record in which the problems for consideration here were given extensive and careful analysis.

In the case of Fitzpatrick v. Penfield, 267 Pa. 564, 109 Atl. 653 (1920), the Supreme Court of Pennsylvania had occasion to consider a problem which is very closely related to the one under consideration by this court. In that case the deceased was playing with a number of other children upon premises which did not belong to the defendant, and upon which the children were regarded as being trespassers. The defendant’s property adjoined the property upon which the children were playing, and on defendant’s property there had remained standing the wall of a building which had been destroyed by fire. As the result of a high wind a part of the wall fell onto the adjoining premises upon which the children were playing and killed three of the boys, including the decedent for whose death the action was instituted. It was contended by the defendant (as is likewise contended in the instant case), that there was no duty owing to the child, and that, therefore, defendant was not liable for the death of the child. The Pennsylvania court, after extensive and careful consideration, rejected that contention, and after finding that the failure to take measures to prevent the wall being blown over by the wind could constitute actionable negligence, stated, with reference to the contention that the deceased was a trespasser, “Assuming that the children were trespassers, the owners of the French lot (upon which, they were injured) would not be liable short of wantonness or wilfulness, for anything that befell them while on these premises. . . . The defense of no liability for injury to a trespasser is personal to the owner of the premises trespassed upon; it does not inure to the benefit of strangers to the title, adjoining owners, or other trespassers. When the wall fell, defendant, at that moment, became a trespasser. The circumstances present the case, technically, of a trespasser injuring another trespasser, and of the relative rights between the two. ... A person cannot escape liability for negligence merely because the person injured is a trespasser, where, before the commission of the negligent act the presence of the trespasser was known to him, or ought to have been known, and by the use of ordinary care the defendant might have prevented the injury. One trespass will not justify another: 29 Cyc. 443, and many cases cited. ’ ’

The observations of the court in- the Pennsylvania case are equally applicable to the facts in the instant case. The defendants did not own the property upon which the children were seated. At the moment, both plaintiff and defendants, ostensibly, were trespassers on.such property — plaintiff, by his physical presence; and defendants, when the brick was thrown onto the premises where the plaintiff was seated. The fact that plaintiff was a trespasser, or a licensee, or an invitee, as to the premises upon which he was seated, is not available as a defense to defendants, who did not own such premises.

The Pennsylvania case referred to in this opinion, is not alone in its conclusion that the rule of immunity of an owner of land for damages suffered by a trespasser or licensee (except from wilful and wanton conduct) has not been extended to cases where the injured person was a trespasser upon the land of a person other than the wrongdoer. In the words of the New York Court of Appeals in the case of Constantino v. Watson Contracting Co., 219 N. Y. 443, 114 N. E. 802, “The rule invoked by the defendant applies only between the licensee and the owner of the land. It has no application between a licensee and strangers or other licensees.” Modifications of such rule have even been extended to a case where a corporation whose employees had been guilty of negligence in laying a pipe drain under a street so as to cause a leak in a gas main which was encased in the drain pipe, was held liable for the death from asphyxiation occurring almost 1 year later, even though the deceased was, at the time of his death from asphyxiation, a trespasser in a vacant house owned by such corporation, about 400 feet away from the leak in the main (Ehret v. Village of Scarsdale, 269 N. Y. 198,199 N. E. 56).

If the plaintiff in the instant case, had been seated in his own yard, the fact that he was watching certain operations being conducted by the defendants would obviously not have deprived him of protection against negligent acts on part of defendants which would cause injury to him in his own yard. The rule recited in the many cases referred to by defendants, relating to trespassers, licensees, and “onlookers” could not have applied to him. There is nothing which arises from the fact that plaintiff was seated on premises belonging to a third party, and not to defendants, which deprives plaintiff of his rights as against defendants which would arise by virtue of negligent conduct on the part of such defendants.

It is, therefore, the conclusion of this court that the defendants owed a duty to plaintiff to refrain from negligent conduct toward him, and that the rule relating to owners of land, vis-a-vis, trespassers or licensees, is not applicable under the facts and circumstances in this case.

We must, therefore, conclude, under the facts, that plaintiff has presented evidence to sustain the allegations of his complaint, and that such facts entitle him to have his case submitted to a jury. We have not overlooked the defendant’s contention that no negligence was shown in this case on part of defendants. The evidence, as we have stated heretofore, demonstrated that the defendants were aware that bricks and parts of bricks, and loose mortar and sand, were falling to the street and had fallen to the street, under the wheels of the trucks. Evidence in the record indicates that the presence of the plaintiff was known, or should have been known, under the facts, to the defendants or their agents. The accident which occurred, or one of similar character, might reasonably have been foreseen by the defendants as a consequence of the spinning of the wheels of the truck to get traction. The facts, as presented in the record, are sufficient to entitle plaintiff to have a jury pass upon whether or not the defendants were guilty of negligence toward plaintiff (Burruano v. Public Service Transp. Co., 7 N. J. Misc. 169, 144 Atl. 585; Railway Express Agency v. Brown, 25 Ala. App. 121, 141 So. 726).

The judgment of the circuit court of St. Clair county will, therefore, be reversed, and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Culbertson

license: Public Domain

text:
    Anna Sczurek, Appellee, v. American National Insurance Company, Appellant.

      Opinion filed March 1, 1941.
    B. W. Bopiequet and Philip G-. Listeman, both of East St. Louis, for appellant; Whitnel, Browning, Listeman & Walker, of East St. Louis, of counsel.

      Beasley & Zulley, of East St. Louis, for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal by the appellant, American National Insurance Company (hereinafter called defendant), from a judgment in favor of the appellee, Anna Sczurek (hereinafter called plaintiff), in the sum of $2,297.81, obtained by plaintiff in an action in the city court of East St. Louis upon two policies of life insurance upon the life of Mike Sczurek, plaintiff’s husband. The case was tried by the court, without a jury.

The evidence discloses that the insured, Mike Sczurek (who was 33 years of age on January 25, 1933), after he returned home from his work, called at a grocery store which was operated by his brother and where his wife, the plaintiff, was working as cashier, and requested the keys to his Whippet automobile, which was parked near the store. The insured was then dressed in a dark-blue pencil-striped suit and was wearing a cap. He was pale in appearance, and witnesses testified that he looked, “disgusted, sick, and tired.” On receipt of the keys to his automobile he told plaintiff that she would not see him any more. After the insured got into his automobile it was the last time that he was seen by the plaintiff, or other persons in the store.

A short time afterward the insured was seen by another witness, headed for the free bridge which spans the Mississippi river between the cities of East St. Louis, Illinois, and St. Louis, Missouri. Such witness, who was a bread salesman and who crossed the free bridge many times a day, .had known insured since childhood. The insured and this witness waved at each other in passing. The same witness had occasion to cross the bridge about 20 to 25 minutes later, at about a quarter till five in the afternoon, and at that time he saw the Whippet car which the insured was driving, parked on the approach of the free bridge near the east end of the superstructure. Such witness noticed the insured’s car still parked there shortly afterward on his return trip.

At about 4:30 p.m. of the same afternoon, three farmers who were returning from St. Louis, Missouri, over the bridge, noticed a man wearing a dark suit and a cap walking very rapidly over the north sidewalk of the free bridge in the direction of St. Louis. They saw a Whippet automobile, facing west, parked near the east end of the superstructure of the bridge. As they observed the man who was walking from the direction of the automobile, toward them, he suddenly placed his hands upon the top railing, pulled his foot up over the center rail, and then pulled himself up and fell over into the river. The point at which the man jumped was about 20 feet to the west of the east shore of the Mississippi river. The three farmers stopped their truck and ran over to see if the body of the man who had jumped would come to the surface of the river. Although they remained watching the river for some 10 to 15 minutes, the body never came to the surface.

It was established that the insured, Mike Sezurek was unable to swim; and that he had a crippled leg and was ruptured.

After the plaintiff and her brother-in-law became alarmed over the insured’s failure to return and had gone out to look for him, they finally found his automobile on the bridge at about 6:30 p.m. of the same day. The automobile was standing parked about 20 or 30 feet east of the steel superstructure and the keys were in the ignition.

On the following day, the St. Louis Post Dispatch, a daily newspaper, published an article regarding the insured and referred to the fact that he had jumped off the free bridge and lost his life. The article also referred to another man who had jumped about two o’clock, earlier in the afternoon, and whose body was recovered. It was shown that the insured had jumped from a position on the east portion of the superstructure, while the other man who had jumped earlier in the afternoon, had jumped from the middle span of the bridge. The body of the insured was never recovered. There was some evidence that the plaintiff and the brother of the insured had made some efforts to find out if he was still alive, but aside from rumors of people who had claimed to have seen the insured, nothing further was heard of the insured after he had jumped from the bridge.

Notice of the death of insured was given to the defendant and request was made on defendant to furnish the plaintiff the customary blanks for making proof of death, on March 16, 1936. Plaintiff averred that she had no definite knowledge of the death until that date. The proofs of death were furnished to the defendant on blanks supplied by it, and in accordance with defendant’s instructions, and included a newspaper clipping requested by defendant, which referred to the fact that the insured had died by jumping off the bridge and drowning, as hereinbefore stated. Such proof was furnished on March 28, 1936, and was afterward retained by the defendant, without objection, until the date of the trial when it was produced by defendant’s attorneys at the trial, upon request of plaintiff’s attorneys. No evidence was offered by the defendant.

The court entered judgment in favor of the plaintiff in the sum of $2,297.81, which included 5' per cent interest from the date of the delivery of proof of death to the defendant Company (after deducting the amount of policy loans and interest, as to which there is no dispute).

The defendant Company, as ground for reversal, contends that the evidence fails to show the death of the insured; that plaintiff failed to comply with conditions precedent entitling her to a recovery as against the defendant (the condition precedent being stated as the failure to deliver the policies of insurance sued upon); and that the court erred in allowing plaintiff to recover interest from the time of the furnishing of proof of death on blanks supplied by the defendant.

Plaintiff established a prima facie right of recovery when she introduced the life insurance policies in evidence, together with the acknowledgment of the receipt of premiums, and the evidence referred to in the statement of facts herein as to the death of the insured by jumping into the Mississippi river and of the fact of notice of such death and proof of loss on blanks furnished by the defendant, in absence of the pleading of any affirmative defense, under the facts and circumstances in this case (Bones v. Bankers Life Ins. Co., 282 Ill. 236; Continental Life Ins. Co. v. Rogers, 119 Ill. 474).

The additional fact that the notice and proof of loss which were submitted to defendant by plaintiff, were received and retained, without objection, constitutes a waiver of the insurer’s right later to object thereto as not satisfying any requirements of the policies (Continental Life Ins. Co. v. Rogers, supra).

It has, likewise, been established that death (for the purpose of fixing*liability on a life insurance contract), may be shown by circumstantial evidence alone and that the presumption of continuance of life prevails only until facts are shown which make the presumption of death most reasonable (Veselsky v. Bankers Life Co., 248 Ill. App. 176).

In view of the facts as presented in the court below in the instant case, and of the principles hereinabove set forth, and in view of the well-established rule that in trials without a jury, the findings of the court are entitled to the same weight as a jury’s verdict, and will not be set aside unless manifestly against the weight of the evidence (Shapleigh Hardware Co. v. Enterprise Foundry Co., 305 Ill. App. 180; Keefer Coal Co. v. United Elec. Coal Co., 291 Ill. App. 477), this court is not, disposed to interfere with the conclusion of the court below.

Essentially,’ the only other point which was raised by the defendant as a basis for reversal, is the contention that the policies of insurance were required to be delivered to the defendant prior to the institution of action upon the policies and that failure to deliver such policies is the failure to perform a condition precedent which prevents a recovery in this case. It is also contended that failure to deliver the policies prevents a recovery of interest as allowed in the court below as hereinbefore specified.

No affirmative defenses were pleaded below and, as pointed out heretofore, no objections were made to the notice of death and proof of loss furnished by plaintiff. The policies were actually introduced in evidence at the trial of the action, although an allegation of the complaint alleged that such policies were in the possession of the defendant. Defendant, however, is under misapprehension as to the effect of the failure to deliver the policies. Conditions precedent are such as are required to be performed before an insurance agreement becomes effective (Crawford v. Abraham Lincoln Life Ins. Co., 278 Ill. App. 576). The failure to deliver the policies was clearly not of such character. The delivery of the policies, is likewise not a condition precedent to the institution of action on such policies even though the policies, as here, provide for actual delivery to an insurance company (Stephenson v. Banhers’ Life Ass’n, 108 Iowa 637, 79 N. W. 459).

It is contended by the plaintiff that the abstract of defendant appellant was incomplete, scanty, and misleading, and that plaintiff appellee was thereby required to furnish a further and additional abstract and is entitled to recover costs therefor, pursuant to rule 34 of this court. Such additional abstract appears to have been necessary to a complete determination of the matter in this court and the clerk is, therefore, directe.d to allow the costs thereof in accordance with rule 34 of this court.

Plaintiff appellee likewise contends that defendant’s refusal to pay the amount of the loss is vexatious and without reasonable cause, and that the appeal is frivolous and is being prosecuted in furtherance of defendant’s scheme of vexatious delay. Plaintiff, accordingly, requested the allowance of attorneys’ fees to be taxed as costs, pursuant to section 767 of chapter 73 of Ill. Rev. Stat. [Jones Ill. Stats. Ann. 66.830]. Under the facts in the instant case we are not satisfied that the refusal of the defendant Company to pay was vexatious, or that the action of defendant Company in this case comes within the purview of the act referred to. We must, therefore, deny the request of plaintiff appellee for the recovery of attorneys’ fees to be taxed as costs in the instant case.

There being no reversible error in the record, the judgment of the city court of the city of East St. Louis is, therefore, affirmed.

Affirmed.


text:
    Harry Alcorn, Appellant, v. LeRoy Alcorn et al., Appellees.

      Opinion filed March 1, 1941.
    Rehearing denied April 3, 1941.
    James DeBord, of Olney, for appellant.
    John Lynch and R. S. Rowland, both of Olney, for appellees.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Richland county, dismissing the complaint of appellant, Harry Alcorn (hereinafter called plaintiff), as amended, on motion of appellees, LeRoy Alcorn et al. (hereinafter called defendants), for want of equity. The action was substantially one seeking relief for alleged breach of trust and requesting, as a basis therefor, the construction of the will of William E. Alcorn, deceased, and the determination of whether or not any trusts were declared in such will, and likewise requesting further relief incidental thereto.

The pleadings show that William E. Alcorn died on December 31, 1895, leaving the plaintiff and the defendants as his surviving children, and also leaving surviving Ms widow, Mary J. Alcorn. Plaintiff and all of the other children were at that time of lawful age and under no legal disability with the exception of one of the defendants, who was a minor at the time of her father’s death. The will of William E. Alcorn was made some 15 years before he died. It is shown by the complaint that during that 15-year period after the date of the will, he disposed of all of his property (with the exception of some lots in Cincinnati, Ohio, and some subsurface rights to a public park located in the village of Noble, Illinois). The heirs of William E. Alcorn and Mary J. Alcorn still own the public park, subject to a common-law dedication of the same to public use, but the Cincinnati lots were all conveyed to the widow of William E. Alcorn by the heirs (including plaintiff) of William E. Alcorn (except the defendant who was a minor hereinabove referred to). A decree of the Hamilton county, Ohio, common pleas court, in a partition suit under the laws of Ohio, vested title to said lots in the said widow of William E. Alcorn. All of the remaining property was conveyed during his lifetime by the said William E. Alcorn to his wife, Mary J. Alcorn.

The said William E. Alcorn had supposedly died intestate, but in 1899, it is disclosed that the widow discovered the will of said William E. Alcorn (the complaint implies that she had concealed it in the interim). In any event, such will was probated in the county court of Eichland county on January 2, 1900. The executors of the will filed their inventory, which was approved in 1903, and in the inventory recited the fact that after the making of his will, the said William E. Alcorn had conveyed his real estate by deed to his wife, Mary J. Alcorn. The inventory simply listed $600 worth of personal property. Final report in such estate was, likewise, approved in 1903.

The pleadings also disclose that the said Mary J. Alcorn, widow of William E. Alcorn, died in 1921, and that plaintiff had made no objection that she had not properly acted as to the estate of the deceased William E. Alcorn, or that she had concealed his will. The said Mary J. Alcorn, in her last will and testament, bequeathed to her son, the plaintiff, a certain house and lot in Olney, Illinois, and the sum of $1,000 in cash, which the plaintiff received and acknowledged to be in full and complete payment under the terms of his mother’s will and as to any and all claims due from such estate of his mother. Such receipt was signed in 1937, and the final report in the estate of plaintiff’s mother, Mary J. Alcorn, was approved "on October 7, 1937.

The complaint charges that the mother, Mary J. Al-corn, through concealment and deception operated to defraud plaintiff of his interest in property under the will of William E. Alcorn. The complaint is vague in many particulars, but on examination of such complaint we are unable to find any allegation of facts which shows that defendants have received any right, title, or property belonging in equity or justice to the plaintiff as an heir or pursuant to the will of William E. Alcorn. Under the facts and circumstances in this case we must conclude that the judgment of the circuit court of Eichland county dismissing the cause for want of equity was proper.

A will does not become effective until the death of the testator and may be destroyed or altered at any time during the lifetime of the maker. Such will cannot vest in another any property that the maker does not have at death. The complaint in the instant case shows that when William E. Alcorn died he owned no real estate, except that outlined heretofore. Nothing could be transferred by the will which was not owned at death by the testator, and the courts of this State have many times established that a will devising real estate may be revoked by the testator during his lifetime by a subsequent valid conveyance (Meily v. Knox, 269 Ill. 463, 466; Phillippe v. Clevenger, 239 Ill. 117, 119). No facts are otherwise pleaded to show that the said William E. Alcorn ever executed a trust instrument of any kind for the benefit of any person, or ever vested, as trustee, in the said Mary J. Alcorn or any other person, title to any of the property conveyed.

The facts relating* to the administration of the William E. Alcorn estate likewise justify the action of the trial court in the dismissal of the plaintiff’s complaint. As we have indicated, final report was filed and approved in such estate in 1903. In the estate of Mary J. Alcorn, the widow, final report was approved in 1937. Notice was given as provided by law, and if any contention is made, as might be implied from some of the allegations of the complaint, that the actions approving such final reports were erroneous, the judgments approving the reports should have been appealed from by the plaintiff. Plaintiff, by failing* to appeal, is bound by the action on such orders in such estates (Schlink v. Maxton, 153 Ill. 447). In the estate of Mary J. Alcorn, as a matter of fact, the pleadings show the receipt by plaintiff of certain bequests and conveyances in discharge of all obligations to him in such estate. Plaintiff is additionally bound by his acceptance of such benefits under the terms of the will of his mother (Gorham v. Dodge, 122 Ill. 528).

Reference is made in the complaint to the will of William E. Alcorn by the terms of which a life estate was devised and bequeathed to his widow, with the remainder to his children. A provision of the will also directed the executors to sell and convey the real estate and personal property of which the deceased died possessed, and to convert the money realized from the sale into United States government bonds. In this connection, no facts are alleged to show any fraudulent conduct by the life tenant under the will, nor are any facts alleged upon which to base a right of action against the defendants in this proceeding, despite the fact that a number of amendments were made in the complaint before the order of dismissal, which is appealed from, was entered.

As to the will of William E. Alcorn, which is made the basis of plaintiff’s complaint, the least that could be said of plaintiff is that he is barred by laches. Proceedings to enforce a trust have been barred by the doctrine of laches (Herr v. Payson, 157 Ill. 244). Courts of equity follow the law in the application of statutes of limitation (Harding v. Durand, 138 Ill. 515), and often treat a lapse of a shorter period than is provided in actions at law as a bar to a recovery in equity (McMillan v. McMillan, 184 Ill. 230; Walker v. Warner, 179 Ill. 16). The estate of William E. Alcorn has been closed and the executors had been discharged for 35 years before the filing of the complaint, and both executors are now deceased. No property, subject to the will, remains to be disposed of. From the pleadings there appears to be no trust unexecuted created by the will, and no question of trust involved. Under the circumstances, there appears to be no basis or justification for action to construe the will (Strawn v. Jacksonville Female Academy, 240 Ill. 111; Fletcher v. Root, 240 Ill. 429).

We must, therefore, conclude that the action of the circuit court of Richland county in dismissing the cause for want of equity was not erroneous and should be affirmed.

Judgment affirmed.


text:
    Citizens National Bank, Appellant, v. Joseph Kesl and Sons Company and S. J. Groves and Sons Company, Appellees.
    Opinion filed March 1, 1941.
    Verme, Eastman & S cheaply and Emerson Baetz, both of Alton, for appellant.
    J. F. Beck, of Edwardsville, for appellees.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal hy the Citizens National Bank (hereinafter called plaintiff), from a judgment for nominal damages of $100 awarded to it as against ap-pellees, Joseph Kesl & Sons Co., a corporation, and S. J. Groves & Sons Company, a corporation (hereinafter called defendants). It is the contention of plaintiff that it is entitled to actual and compensatory damages rather than only nominal damages.

The amended complaint of plaintiff, upon which the action was tried in the court helow, recited the fact that the plaintiff was the mortgagee of certain farm premises in Madison county, and that such mortgage was in default. It was alleged, and shown by the evidence, that defendants had taken a certain quantity of the top soil and loam from such farm, without the consent of' plaintiff, as mortgagee, and without the consent of the owner of a two-thirds interest in the mortgaged premises. A widow of the deceased owner of the premises, who held a one-third interest therein, had been paid the sum of $700 by the defendants for purchase of the soil, but the granddaughter, who was the owner of a two-thirds interest in the premises, was not paid any money hy the defendants, nor was permission obtained from her for the removal of the soil. After the excavation, both the widow and the granddaughter quitclaimed all interest in the property to the plaintiff Bank and assigned to plaintiff all other causes of action for the defendants’ trespasses.

The action was instituted seeking recovery by the plaintiff, against the defendants, in its capacity both as mortgagee and as assignee of the owner of the two-thirds interest. No claim was made as to .the one-third interest because of the agreement as to compensation between the defendants and such owner of the one-third interest. The allegations of the complaint which referred to the status of the plaintiff as mortgagee, claimed damages for impairment of the security on such mortgage. Judgment was additionally prayed as against one defendant for $1,666 and against the other defendant for $833, making a total of $2,499, in addition to the amount claimed due under the mortgage.

The allegations of the complaint while primarily framed to establish a right of action for impairment of the security and for diminution in the value of the land, contained recitals which were designed to establish a claim based upon the assignment from the owner of the two-thirds interest for damages for the wrongful excavating* and carrying away of the top soil and loam, and which is predicated on the injury and trespass to the farm. The provisions of the complaint with reference thereto do not precisely set forth that such allegations are based upon a claim for damages for removal of top soil of a specific value when so removed. The complaint sets forth the acts, and alleges the assignment to plaintiff of the causes of action for injury and trespass to the farm, and then concludes, “That as a direct and proximate result of the unlawful acts . . . said Mary Elinor Monroe suffered damages to her said undivided two-thirds interest in said farm not less than Six Hundred and Sixty-Six Dollars ($666.00) and exclusive of all damages to, and depreciation in, the value of plaintiff’s said security . . . and that plaintiff is now the actual, bona fide owner of Mary Elinor Monroe’s cause of action against defendant . . . for damaging* . . . her interest in said farm.” Similar allegations referring to the sum of $333 are contained in another count as to another defendant. In each count a request is made for judgment in the amount of the mortgage note, with interest, “plus” the sum of $1,666 as against one defendant, and “plus” the sum of $833, as against the other defendant.

At the trial of the action, the evidence produced by plaintiff was principally concentrated upon proof of the amount of. earth and loam taken from the farm, and upon questions as to the value of such earth and loam after its removal. There was no evidence that the farm, after the removal of the top soil and loam, was any less valuable than prior to the removal of such excavated materials. It was shown, that soil of an aggregate value of $5,113.75 was taken by the defendants. The evidence likewise disclosed that defendants received $10,636.36 for the earth after its removal. It was also shown that the unpaid taxes on the land were in excess of the value placed on the farm by witnesses for defendants. It is contended by plaintiff that such fact tends to establish that the farm was, therefore, no longer any security for plaintiff’s mortgage.

The action was tried before the court, without a jury, and the court below, after hearing the evidence, entered an order which specified that by the terms of the amended complaint, plaintiff sought to recover from defendants for permanent damages rendered to the farm upon which plaintiff held a first mortgage, without plaintiff’s consent, whereby the security of plaintiff’s mortgage was impaired and diminished, and the court concluded that in such case the true measure of damages is the difference between the fair market value of the farm immediately before and immediately after the removal of the soil. The court then referred to the fact that no testimony had been offered to prove the value of the farm at any time and no depreciation in the value of the mortgage security had been shown. The court concluded that the plaintiff was, therefore, not entitled to recover actual damages, but could recover nominal damages only, and the judgment was, therefore, entered for the sum of $100 and costs.

After the entry of the judgment and prior to filing of notice of appeal, plaintiff filed a motion to amend the amended complaint for the purpose of alleging specifically that the fair and reasonable value of the top soil taken by defendants was in excess of $1,600. Such motion was denied by the court below for the reason that, “the amendments proposed would state a different cause of action from the cause of action stated in the amended complaint on which the cause of action was tried.”

Plaintiff appeals from the judgment below, and from the rulings of the court, and contends that the trial court erred in awarding it only nominal damages and that it is entitled to substantial damages. In this connection, it is contended by plaintiff that the complaint states a claim for damages for trespass and that the measure of damages referred to by the court below was not correct, but that the measure of damages was the value of the soil admittedly taken by the defendants. Plaintiff likewise asserts that the court erred in ruling that the complaint stated only a claim for impairment of the value of the mortgage security. It is further contended that the court erred in denying the application of plaintiff to amend the complaint after judgment, to conform to the proofs, by specifically alleging the value of the soil taken.

It has been established by the courts of this State that where one wrongfully removes soil from the land of another, the latter is not restricted to a recovery of the difference in value of his real estate before and after the trespass, but he may recover the value of the soil after it is severed from the land and becomes chattel property (Sikes v. Moline Consumers Co., 293 Ill. 112; Washington Ice Co. v. Short all, 101 Ill. 46; Piper v. Connelly, 108 Ill. 646; Donovan v. Consolidated Coal Co., 187 Ill. 28).

Under the allegations of the complaint referred to in this opinion, while such complaint is lacking in many respects, a cause of action is stated (under the provisions of our Civil Practice Act), for damages for trespass to real estate analogous to the common-law action of trespass quare clausum fregit (Sikes v. Moline Consumers Co., supra; Washington Ice Co. v. Shortall, supra; Piper v. Connelly, supra; Robertson v. Jones, 71 Ill.405).

The right of the owner of the two-thirds interest (and of plaintiff, as assignee) to recover the value of the soil taken by the defendants is, therefore, dependent alone, under the facts, upon the nature of the allegations in the complaint both with reference to the statement of the cause of action and as to the damages to be awarded.

The allegations of the complaint which relate to the claim for damages for the removal of the soil, as contrasted with the claim arising out of the assertion of diminution of the security, are those which are recited in this opinion. While a specific reference is made in the body of the complaint to certain sums, it is noted that the reference is to “not less than” $666 and $333, respectively. The general allegations of damage sustained in excess of the amount claimed on the mort-gage is set up in the allegations requesting judgment for the amount of the mortgage note with interest, “plus” the sums of $1,666 and $833, respectively. Under the circumstances such allegations could only be referable to the claim for damages for wrongful removal of the soil. While evidence tended to establish damage as to the two-thirds interest in excess of the total sum of $2,499 claimed, plaintiff will be restricted to the sum of $2,499 requested by the allegations of the complaint. The amendment proposed by plaintiff was not designated to increase the amount of such demand for damages.

In view of what we have heretofore stated, and the conclusion of this court, it is not necessary to inquire into the propriety of the decision of the court refusing the amendment requested by plaintiff.

The contention is made by plaintiff that it is likewise entitled to the amount of its mortgage on the basis of the evidence presented in the court below. We cannot agree with the plaintiff on this contention and must conclude that the court below was correct in the decision in so far as it applies to the rights of the mortgagee, as such, on the basis of the evidence and the allegations of the complaint. The mortgagee is entitled under such facts and circumstances only to the amount by which the security of the mortgaged property has been impaired by the wrongful acts (Hummer v. R. C. Huffman Const. Co., 63 F. (2d) 372). The evidence shows no impairment in the value of such security by reason of the acts of the defendant.

The fact that the taxes on the premises exceeded the value of the premises, was in no manner due to acts of the defendants and there is, therefore, no evidence in the record upon which a right of recovery for anything more than nominal damages could be justified in favor of plaintiff, as mortgagee.

Judgment will, therefore, be entered in this court in the sum of $2,599 (being the total of $2,499 herein-above specified, and the $100 awarded as nominal damages) in favor of plaintiff and as against the defendants, the defendants having agreed that judgment may be entered against them jointly in the determination of this cause.

Affirmed as modified, and judgment entered here.


text:
    Mary G. Fricke, Administratrix, Appellant, v. St. Louis Bridge Company et al., Appellees.

      Opinion filed March 1, 1941.
    Joseph A. Troy, of Belleville, and Beasley & Zulley, of East St. Louis, for appellant.
    Kramer, Campbell, Costello & Wiechert and Norman J. Gundlach, both of East St. Louis, for appel-lees.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal by appellant, Mary G. Fricke, ad-ministratrix of the estate of her deceased husband, Bernie C. Fricke (hereinafter called plaintiff), from an order of the circuit court of St. Clair county, granting appellees’ motion for judgment non obstante vere-dicto after a verdict in the sum of $2,000 had been rendered in favor of plaintiff.

The complaint in this case consisted of three counts, but the third count was withdrawn and the case went to the jury on the first and second counts. It is alleged in each of said counts that, the appellees, St. Louis Bridge Company, a corporation, and the Terminal Railroad Association of St. Louis (hereinafter called defendants), were the owners and operators of the Eads Bridge, which spans the Mississippi river between East St. Louis, Illinois, and St. Louis, Missouri; and that on the 18th of December, 1887, the defendant St. Louis Bridge Company, a corporation, leased the said Eads Bridge to the Terminal Railroad Association of St. Louis for a term of 500 years.

It is further alleged in said complaint that the bridge has 2 decks. The upper deck on and prior to the 24th day of December, 1938 (that being the date on which the plaintiff’s intestate was killed), was used by pedestrian and vehicular traffic, and the lower deck was used for railroad trains. Each count of the complaint alleged that the upper deck, beginning at the western terminus and extending in an easterly direction until, to-wit: The Illinois shore is reached, is 38 to 40 feet wide; and when the Illinois shore is reached, the upper deck divides into 2 lanes, which are, to-wit; 16 feet in width. One lane, being on the south side, continues on the downgrade to the level of West Broadway in East St. Louis. That the south lane is used for the eastbound traffic, and the north lane is used for westbound traffic. That where the main roadway ends, about even with the Illinois shore, there is a sharp and abrupt turn from said main roadway to the south lane.

The complaint further alleged that, the defendants negligently, carelessly, and improperly failed to place any warning or sign of any kind on said bridge to indicate that said main roadway is separated or divided, and on account of said main roadway being so abruptly and sharply divided a dangerous condition was maintained and created by the said defendants, which said dangerous condition was known to the defendants, or could have been known to them, by the exercise of reasonable care, and was not known to plaintiff’s intestate and could not have been discovered by him by the exercise of reasonable care at and prior to the time he was killed on December 24,1938 at about 9:00 p. m.

Defendants, by their answer, denied the negligence with which they were charged in the complaint, and alleged the lane was 20 feet wide instead of 16.

The evidence in this case was that, on the night of the accident in question certain police officers of East St. Louis, who were on duty that evening, received information about an accident at the east end of the main roadway of the bridge, where it divides and separates into 2 lanes. Officer Flood testified that he went to the scene of the accident immediately upon receiving such information and found a Ford coupe, with plaintiff’s intestate’s body slumped over the steering wheel, at the abutment forming the east end of this main roadway of the bridge; that the car was facing east and was a ’33 or ’34 Ford coupe. The officer testified that the man was apparently dead when, he reached the car and opened the door. This officer further testified that on that particular night there was a pile of chat there at the abutment, a tool box standing in the triangular space, and a couple of rolls of wire that workmen had used on the right of way of the bridge.

The evidence further showed that there wasn’t any line dividing the main roadway into 2 lanes. There was a tower on the north side, and 1 on the south side of the bridge where the road divided, and these towers sat back 6 or 8 feet west of the abutment where the road divided. The evidence shows that there was a light on each of the towers and that the lights were burning at the time this accident occurred.

’ Police Officer Flood testified that there were 2 red glass reflectors on the abutment, 1 in about the middle of the abutment, and 1 on the south end of the abutment, and that the reflectors are about 10 inches square or hexagon shape. This officer further testified that about 150 or 200 feet back from where the road divides, there was a sign, “Welcome to Illinois.”

The evidence further shows that as one is traveling east, when he leaves the main roadway of the bridge, he would be required to make a turn to the south to get into the lane that leads down to the street, and that that lane is about 12 or 15 feed wide.

The evidence further shows that the defendants had built a concrete form about a foot high, the abutment forming the base of the vortex, being about the center of the bridge and about 12 feet distant from the abutment. Inside this triangular form, the evidence showed, was a tool box, wire, and some other articles. The evidence shows that the front wheel of the decedent’s automobile had passed over the form. There is, however, some conflict in the testimony as to whether or not the front of the Ford coupe had struck the abutment. There were no eyewitnesses to this accident so far as this record discloses. Plaintiff appellant offered testimony of a number of witnesses who had ridden with her husband while he was driving automobiles, who testified that the deceased was a careful driver. Plaintiff’s witness Charles Gamble, testified that he could see where the road separates at night, 100 feet west from the abutment.

The evidence for the defendants establishes that on the night of the accident in question, the weather was clear and the pavement dry, and a witness was produced by defendants who testified that there were skid marks on the bridge about 20 feet long and that they led back from the abutment in the direction of plaintiff’s intestate’s car. Another witness offered on behalf of defendants testified that he observed tire burns on the pavement about 30 feet from the car, towards the St. Louis side, leading toward the auto in which the plaintiff’s intestate was riding. Another witness called on behalf of defendants, testified that there was enough space between the corner buildings and the abutment for a street car and a transport truck to go through, and that there were lights all along on both sides of the bridge and the approaches thereto.

Defendants also offered in evidence defendants’ exhibits “1” and “2,” which are photographs of the roadway of the bridge looking east in the direction which deceased was traveling, taken the morning after the accident. An examination of these 2 exhibits depicts the size and character of the warning marks, being black and white diagonal stripes on the upper part of this abutment, and more eloquently show the conditions as they existed in connection with this barricade than would be possible by any oral testimony.

In the light of this evidence we must give consideration to the question as to whether or not the trial court acted agreeable to law in allowing the motion for a judgment notwithstanding the verdict. In the consideration of that motion by the court, the rule must be applied as to whether there is any evidence to sustain plaintiff’s case, and the plaintiff is entitled to the benefit of all of the facts in evidence tending to prove plaintiff’s case, and all just inferences that can be drawn therefrom most favorable to plaintiff’s case, regardless of whether such evidence is produced by her or by the defendants, and the trial court had no power (a jury not having been waived) to determine the weight and preponderance of conflicting evidence introduced to establish or disprove the facts, as a trial judge is never authorized to take a case from the jury, or direct a verdict where to do so would involve the determination of the preponderance of evidence. As is readily apparent, if it were permissible for a trial judge on a motion non obstante veredicto to weigh the evidence and enter judgment according to his opinion as to wherein lies the greater weight of the evidence, then the right to a trial by jury would be done away with and the judgment of the court substituted therefor, and it is only where there is no evidence, as a matter of law, to sustain either a plaintiff’s or a defendant’s claim, that a judgment may be entered notwithstanding the verdict (Libby, McNeill & Libby v. Cook, 222 Ill. 206; Blumb v. Getz, 366 Ill. 273; Supreme Court Rule 22; McNeill v. Harrison & Sons, Inc., 286 Ill. App. 120).

Having in mind these very definitely established rules of law that were binding upon the trial court when he gave consideration to the allowance of the motion for a judgment notwithstanding the verdict, and giving consideration to the evidence as that evidence appeared before the trial court when he passed upon the motion, we must conclude that we fail to discover any evidence in this record showing actionable negligence upon the part of the defendants in this case, and a fair consideration of the evidence brings us to the inescapable conclusion that plaintiff’s intestate, as a matter of law, was guilty of contributory negligence. It would seem to us that the deceased’s negligence was the sole or contributing cause of his death, and that being the fact, there is no liability on the part of the defendants (Grubb v. Illinois Terminal Co., 366 Ill. 330; Provenzano v. Illinois Cent. R. Co., 357 Ill. 192; Dee v. City of Peru, 343 Ill. 36).

It is apparent, under the evidence, that if the deceased had looked and had had his car under proper control, he could have seen the abutment or fence, and also the division of the road, and it cannot otherwise be contended (Provensano v. Illinois Cent. R. Co., supra; Dee v. City of Peru, supra; Greenwald v. Baltimore & O. R. Co., 332 Ill. 627).

There is no liability for an injury resulting from a collision with a barrier, marker or traffic signal lawfully fixed and maintained and plainly visible to one using ordinary care (25 Amer. Jurisprudence, 770, 771, “Highways,” sec. 482).

Plaintiff also assigns as error in this court that the trial court erroneously sustained an objection to her offer to prove that there was in common use in St. Clair county, signs which were practical and inexpensive and which were to be used to indicate curves or turns in the highways, and that the court should have permitted her to make this proof. We fail to see how this proof could have been material in this case, or in any way error to exclude, and we so hold that the trial court properly sustained the objection to it.

No error having been assigned in this case that would warrant any interference on the part of this court with the action of the trial court in allowing the motion for a judgment notwithstanding the verdict, the action of the trial court is, therefore, affirmed.

Judgment affirmed.


text:
    Herschel Wilson, Appellee, v. Glens Falls Insurance Co., Appellant.

      Opinion filed March 1, 1941.
    Clifford Greve, of St. Louis, Mo., and Jesse E. Brown, of Edwardsville, for appellant.
    William C. Dunham, Philip G. Listeman and Josiah Whitnel, all of East St. Louis, for appellee; Whitnel, Browning, Listeman & Walker and Oehmke & Dunham, both of East St. Louis, of counsel.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Madison county, Illinois, in the sum of $992.45', entered in favor of Herschel Wilson, appellee (hereinafter called plaintiff), and against Glens Falls Insurance Company, a corporation, appellant (hereinafter called defendant).

Plaintiff was the owner of a White motor tractor which he insured against accidental damage in defendant company and while so insured on June 16, 1939, the tractor was wrecked. The accident was reported and proof of loss filed, and on July 21, 1939, defendant’s adjuster, Mr. Neil Wood, of St. Louis, Missouri, and plaintiff agreed upon the sum of $950 to be paid plaintiff in settlement of said loss.' Plaintiff contended that said sum had not been paid to him and sued on the contract of settlement. Defendant contends in this case that it, has paid to the plaintiff any and all sums that it may have owed the plaintiff by executing a draft made payable to the plaintiff, and delivering same to the agent of the plaintiff at the plaintiff’s last-known address, which address was the address used by the plaintiff as his usual place of business to which all previous correspondence between the defendant and the plaintiff had been addressed, and that this draft or check was paid by the bank on which same was drawn, which thereby released the defendant from any and all liability, and if there is any liability to the plaintiff it was upon the part of the bank or banks so honoring said check and the parties receiving the funds from said draft or check.

Plaintiff testified on the trial of this case that during the year 1938 he was the owner of a White tractor, motor number 2009 and that said tractor was insured against loss or damage on account of accident or collision with defendant company and that on or about June 19, 1939, the tractor was damaged as the result of a wreck that occurred between 0 ’Fallon and Carlyle on route 50. Plaintiff further testified that he reported the damage to the defendant company by reporting it to the Insurers Service acting as agent for said defendant company. Plaintiff further testified that as a result of the report a form designated “Automobile Proof Sworn Statement in Proof of Loss” was given to him. A photostatic copy of this proof of loss was produced on the trial and admitted in evidence without objection as plaintiff’s exhibit “1.” This proof of loss set forth the whole loss as $1,050 and after giving credit for the $100 deductible provision in the policy the amount claimed was $950. Plaintiff further testified that he dealt with a Mr. Neil Wood, an agent of and representing the Glens Falls Insurance Company relative to the settlement of the amount of his loss and that he reached an agreement with Mr. Wood relative to the amount of this loss and that the amount agreed upon as the loss was $1,050 and after giving credit to the $100 deductible provision of the policy that he was to receive $950 from the defendant company in payment of the loss and that the agreement was reached on July 21, 1939 and that he has never been paid anything on account of the loss or any interest on the sum of $950.

Plaintiff on cross-examination testified that he reported the accident to Mr. Werner of the Insurers Service Corporation because he had placed the insurance.

At the close of plaintiff’s evidence the defendant offered a motion for a directed verdict and same was refused by the court and we hold properly refused.

Mr. Neil Wood called as a witness for the defendant testified among other things that he is an attorney with offices in the Pierce Building in St. Louis and that he represented the defendant company in connection with the loss out of which this litigation arises and that the loss was referred to his office by Mr. Werner of the Insurers Service Corporation. That he contacted the plaintiff herein at Collinsville, Illinois, and told plaintiff he would send some one over from Borbein Young to make the inspection of the equipment and in that way determine the extent of the damages and in the interim for plaintiff to determine in his own mind about what would be a reasonable and fair settlement. He testified plaintiff told him he could reach him in Collinsville or in the 4000 block on North Main street, St. Louis. This witness further testified that after the statement of loss or damage was received, signed, notarized, and witnessed by the plaintiff herein it was sent through the regular channels to the home office of the company. A photostatic copy of the draft issued by the defendant herein was offered in evidence by defendant herein but objection thereto was made on the ground that the original of said draft would be the best evidence. The court very properly in our opinion sustained the objection. Mr. Elmer L. Werner testified in behalf of the defendant herein and stated among other things that he was in the insurance business with the Insurers Service Corporation and was president thereof. He recalled having placed plaintiff’s insurance here in controversy with the defendant herein. He further testified that the defendant herein delivered to his office a draft in the amount of $950 and that upon the receipt thereof he wrote a letter and notice of transmittal to which he attached the draft and sent it to plaintiff at 4070 North Main street, St. Louis. Other testimony was received, a discussion of which we do not consider necessary to this opinion. At four o’clock in the afternoon counsel for defendant asked that the trial of the case be suspended until the following morning for the presentation of further evidence and particularly that they might in the interim secure the original draft from New York by which they make claim this loss had been paid to plaintiff. What further evidence they proposed introducing this record does not disclose and' an examination of the photo static copy of the draft in controversy shows that it does not bear the indorsement of the plaintiff. There does appear indorsed thereon, however, among other indorsements the following:

“Herschel Wilson (typed)
Armentrout & Farrell, Trustees.”

This record does not show any right of Armentrout & Farrell to have indorsed the plaintiff’s name on said draft either as individuals or as trustees. This case had been specially set for trial' for several weeks. Counsel had had an abundance of time to prepare for trial. This case was heard by an able and experienced trial judge and we hold that he did not abuse his discretion in denying defendant further time to present evidence. This has been assigned as error and we hereby expressly hold that it was not error. Defendant offered no further evidence and rested. Defendant requested the court to instruct the jury to find the issues in favor of the defendant but the court refused so to do. The plaintiff requested the court to instruct the jury to find the issues in favor of the plaintiff and the court did so and there was returned the following verdict, “We, the Jury, find the issues in favor of the plaintiff and assess the plaintiff’s damages at the sum of $992.45.” Judgment was entered on the verdict. A motion for a new trial was filed, argued and denied. In addition to the assigned errors already disposed of in this opinion it is urged that the court erred in refusing to admit in evidence defendant’s exhibits 2, 3, 5, and 6. We think all of said exhibits were properly denied admission in evidence. It is also urged as error that the cross-examination of defendant’s witness Mr. Neil Wood was permitted to be more extensive than should have been permitted. We fail to see how defendant was in anywise prejudiced by this cross-examination.

Did the court commit error in directing a verdict for the plaintiff? As we give consideration to that ruling and give consideration to defendant’s evidence it must be considered in its most favorable light to it, together with all the inferences in its favor which can be legitimately drawn therefrom (Brophy v. Illinois Steel Co., 242 Ill. 55; O’Leary v. Chicago City R. Co., 235 Ill. 187). The question of the weight of the evidence cannot be considered (Kelly v. Chicago City R. Co., 283 Ill. 640). We are persuaded however and so hold that no evidence was produced by the defendant in this case that in any way constituted a defense and we hold that the trial court very properly directed a verdict for the plaintiff.

There being no reversible error in this record the judgment of the circuit court of Madison county, Illinois, is hereby affirmed.

Judgment affirmed.


author: Mr. Justice Dady

text:
    Paul W. Werner, Appellee, v. Illinois Central Railroad Company, Appellants.

      Opinion filed March 1, 1941.
    Rehearing denied April 15, 1941.
    Kramer, Campbell, Costello & Wiechert, and Norman J. Gundlach, both of East St. Louis, for appellant ; E. C. Craig, V. W. Foster and Charles A. Helsell, all of Chicago, of counsel.
    Mark D. Eagleton and Roberts P. Elam, both of St. Louis, Mo., and Joseph B. McGlynn, of East St. Louis, for appellees; McGlynn & McGlynn, of counsel.
   Mr. Justice Dady

delivered the opinion of the court.

This is an appeal by defendant Illinois Central Railroad Company from a verdict and judgment in favor of plaintiff, Paul W. Werner, in an action under the Federal Employers’ Liability Act for damages for personal injuries sustained by plaintiff at Pana, Illinois, as the result of his being struck by a dwarf semaphore signal while riding on the side of a box car in the course of his employment with defendant. The parties concede that the provisions of the Federal Employers’ Liability Act apply to this case.

The specific negligence charged in the complaint is that defendant maintained and used said dwarf signal in close and dangerous proximity to defendant’s main line track so as to endanger employees riding on the sides of cars moving on the track and that defendant knew or, in the exercise of ordinary care, should have known of such dangerous condition in time to have remedied the same prior to plaintiff’s injury, but negligently and carelessly failed so to do.

Defendant’s answer denied all charges of negligence, alleged that plaintiff’s injuries were caused by his sole negligence and that plaintiff, through his employment, assumed the risk of his injuries. Defendant also pleaded in the alternative, for the purpose of reducing damages, that plaintiff was guilty of contributory negligence.

Plaintiff was injured on August 21, 1936, at about 9:20 a. m. on a clear day. The injury occurred near defendant’s station at Pana, at which point defendant’s main line, consists of a single straight track practically level, running in a general northerly and southerly direction. A short distance north of this station the tracks of another railroad cross defendant’s main line, and south of this crossing there was located a control tower and various semaphore signals which were operated from the control tower and controlled the movements on defendant’s main line. Approximately 80 feet south of this crossing, and just west of defendant’s station, were the points of a switch in defendant’s main line track, which switch led to the south and west into defendant’s “siding” or “passing track,” which passing track then ran southerly, parallel to and west of the main line track.

The dwarf signal involved in the accident was located 220 feet south of the switch points and between defendant’s main line track and the side track. This dwarf signal stood on a concrete block which was 5 inches above the ground level and consisted of an iron box-like base, from the top of which there projected upward a rectangular vertical iron column 12 inches high, which supported a box-like iron head on top, to which was attached a movable semaphore device, the top of such iron head being 41 inches above the ground. That part of the signal semaphore arm which projected to the east beyond the head of the signal for a distance of some 3 to 6 inches, was made of soft rubber and is referred to as a “paddle.” This dwarf signal had nothing to do with regulating or controlling movements on the main line track, and had no connection with the work or movement in which plaintiff was engaged.

Plaintiff, at the time of the accident, was employed by defendant as a brakeman, and was part of a train crew engaged in moving 3 freight cars in a northerly direction on the main line track past the dwarf signal. The engine facing south was pushing 3 cars north of it, and plaintiff was riding on the west side of the south end of a box car which was the first, or lead car, in the movement. The conductor of the crew, one Baughman, was riding on the same car, also on the west side but at the north end of the car.

The end of the box car ridden by plaintiff contained a long ladder, which would enable a person to climb to the top of the car. This ladder consisted of a series of 7 horizontal grab irons spaced at regular intervals from the bottom sill of the car to near the roof. The bottom grab iron of the ladder projected 4% inches from the body of the car. At the bottom of this ladder was a sill step or “stirrup,” consisting of a U-shaped strap of metal hung from the bottom sill of the car, so that the bottom part of the step was about 27%e inches above the ground.

The distance between the bottom of the stirrup and the lowest grab iron was 16% inches and the measurement from the bottom of plaintiff’s foot to his knee was approximately 20% inches, and when plaintiff was standing on this stirrup this last mentioned grab iron projected out from the side of the car opposite plaintiff’s leg at a point about four inches below plaintiff’s knee.

Plaintiff testified that at the time of the accident he was standing in an upright position on this stirrup, with his left hand on the third grab iron and his right hand on the fourth grab iron from the bottom of the ladder; that he was in the same position he had been in on numerous prior occasions; that he had assumed this position when the movement of the cars started some several hundred feet south of the dwarf signal and had kept this position until the time he was struck. As the cars were moving north plaintiff said he was looking northerly and upwards toward the signal tower as a part of his regular duties, watching for a possible change in signals, and that he did not then see the dwarf signal. The speed of the train at this time was about 10 or 12 miles per hour. Plaintiff stated that as he passed the dwarf signal the signal struck the calf of his left leg and knocked him off the ear to the ground and he was run over.

A flagman at a crossing a short distance south of the dwarf signal testified that he had observed the box car on which plaintiff was riding at the time it passed such crossing, and that plaintiff was then riding straight up against the car in an upright position, and that that was the same position brakemen would ordinarily ride in when passing that particular place. This witness did not see the plaintiff struck by the signal.

The conductor, Baughman, testified that at the time of the accident he was standing on the stirrup of the short ladder located at the north end of the car. This short ladder differed from the long ladder on which plaintiff was riding in that there were only 2 grab irons, the lower one being located from 16 inches to 18 inches above the sill of the car. Baughman stated that he turned his head around just as plaintiff was getting struck and at this time plaintiff was hanging on the long ladder of the car.

Plaintiff called Joseph A. Osborn, a consulting engineer who had practiced his profession with the American Car & Foundry Company for a number of years, who testified as to certain measurements he had made of defendant’s dwarf signal device and of a car of the same type, class, series and dimensions as that upon which plaintiff was riding when injured. Osborn testified that the maximum clearance between the iron part of the dwarf signal and the outer edge of the bottom grab iron of the long ladder of a box car identical to that on which the plaintiff was riding, at a point where the two would become adjacent to one another, and at the point where plaintiff was injured, would be 10 inches, whereas, the maximum clearance between the extreme east edge of the rubber portion of the signal arm and the outer edge of the lower grab iron measured in the same position would be only 4 inches. Defendant produced no testimony as to these measurements. The witness Osborn further testified over objection that there was no practical necessity for this signal to be either as high as it was or as close to the main line track and that defendant could have either lowered the signal or moved the signal along with a portion of its side track to a point further west of the main track along its right of way with little expense and without interfering with the function of the signal and the tracks. He also testified that the box car upon which plaintiff was riding was an unusually wide box car and was about a foot wider than the standard “P” box (car) and was wider than Illinois Central cars. The car in question was one of a series of 2339 Union Pacific steel box cars, each having the same equipment and dimensions.

The plaintiff at the time of his injury had had 33 years’ practical experience as a railroad man, and had been employed by the defendant for a period of 24 years. During this latter time he had been in the Pana Yards numerous times and was familiar with all of the signals located there, including the dwarf signal in question. Plaintiff further stated that he had been familiar with the dwarf signal involved in the accident over a period of 24 years, and that it was in the same place during all of that time and was always in the same position with reference to the track, but that he had never measured the distance between the signal and the track. He also testified that he had ridden by this dwarf signal other times previous to the day of his injury on the west side of box cars, in the position he was in at the time of his injury, and that on the day of the accident he had assisted in the switching of certain cars which were being taken past the signal from the north to the south end of the yards. There is no evidence that plaintiff at any time rode past this signal on a box car with the dimensions of the particular box car involved in the accident.

At the time of his injury plaintiff was 52 years of age and earning $225 per month. The accident caused extensive and serious injuries to plaintiff’s left arm, left leg, head and spine. He was confined to hospitals for a period of 6 weeks and it was necessary to amputate his left arm between the shoulder and the elbow. He was totally disabled from doing any manual work or labor from the time of the accident to the date of the trial on October 2, 1939.

At the close of all the evidence defendant’s motion for a directed verdict was denied. The jury returned a verdict in favor of the plaintiff in the amount of $35,000. Defendant moved for judgment notwithstanding the verdict which the trial court denied and after the entry of judgment defendant moved for a new trial which motion the court also denied. Defendant thereupon took this appeal.

Defendant’s first contention is that this case should be reversed without remanding for the reason that defendant was not negligent and that if there was any negligence the plaintiff assumed the risk of such negligence. If there was any evidence in the case tending to establish plaintiff’s complaint, the question of negligence on the part of the defendant was one of fact for the jury.

It was defendant’s continuous duty to provide a reasonably safe place to work for its employees. However, in fixing the scope of such duty, courts have kept in mind that the work of a railroad is attended with danger and can only be carried on by means that are hazardous and dangerous to employees who engage in such employment. (Devine v. Delano, 272 Ill. 166.) It is well settled that this duty is violated by the company where structures, obstructions or appliances are permitted to exist or are maintained at or near the railroad tracks so as to endanger employees passing on cars in the course of their duties where no practical necessity exists for permitting such dangerous conditions to remain and where it only requires the exercise of due care to make such dangerous conditions safe. (Texas & P. R. Co. v. Swearingen, 196 U. S. 51, 25 Sup. Ct. 164; Choctaw O. & G. R. Co. v. McDade, 191 U. S. 64, 24 Sup. Ct. 24.)

The evidence clearly indicates that the plaintiff was injured because of the close proximity of the dwarf signal to the track. In this class of cases, any contributory negligence on the part of the plaintiff was immaterial on the question of defendant’s liability. A clearance of only 10 inches rendered the running of cars past the signal dangerous and unsafe to defendant’s brakemen. No practical necessity existed for the maintenance of the dwarf signal in the position it was in at the time of the accident. It is undisputed that with very little cost the signal could have been moved or lowered without destroying its practicability and more important, if the location of the signal had' been changed as suggested, the dangerous and unsafe condition would have been eliminated. The Union Pacific car on which plaintiff was riding at the time of the injury was one of many such cars then in use. It is reasonable to assume that the defendant in the operation of its railroad knew of the unusual size of this type of car. The jury could reasonably infer that the railroad knew or in the exercise of due care should have known that the close proximity between the dwarf signal and the box car of such unusual size created a dangerous condition to passing brakemen and that defendant in the exercise of due care should have remedied the condition or warned plaintiff of such danger. In holding a railroad company liable under similar circumstances the court, in Choctaw O. & G. R. Co. v. McDade, supra, said: “The testimony makes it clear that in the proper construction of this appliance there is no necessity of bringing it so near to the car as to endanger brakemen working thereon. . . . Where no necessity exists, as in the present case, for the use of dangerous appliances, and where it is a matter requiring only due skill and care to make the appliances safe, there is no reason why an employee should be subjected to dangers wholly unnecessary to the proper operation of the business of the employer. ... The spout might readily have been so constructed and hung as to be safe. As it was maintained, it was a constant menace to the lives and limbs of employees whose duties required them, by night and day, to pass the structure. It is a case where the dangerous structure is not justified by the necessity of the situation, and we agree with the judgments in the courts below that its maintenance under the circumstances was negligence upon the part of the railroad company.” We are of the opinion that the question of defendant’s negligence was properly submitted to the jury. See also, Harvey v. Texas & P. Ry. Co., 166 Fed. 385; West v. Chicago B. & Q. Ry. Co., 179 Fed. 801; Devine v. Delano, supra.

Many cases are cited by defendant but none apply to the facts in this case. These cases, for example, Chesapeake & O. Ry. Co. v. Leitch, 276 U. S. 429, are based on the ground that where railroads are compelled to adopt and maintain appliances and structures at or near their tracks because of practical necessity, it is unreasonable to throw the risk and danger incident to the nse of such appliances and structures on the railroad.

The burden of proof of the assumption of risk by plaintiff was on the defendant, and whether an employee has assumed the risk is ordinarily a question of fact for the jury. (Kanawha & M. R. Co. v. Kerse, 239 U. S. 576; Pipal v. Grand Trunk Western Ry. Co., 341 Ill. 320.) Both parties agree that in order to charge an employee with the assumption of a risk attributable to a defect due to his employer’s negligence, it must appear not only that he knew or is presumed to have known of the defect, but that he knew it endangered-his safety or else such danger must have been so obvious that an ordinarily prudent person under the circumstances would have appreciated it. (Gila V. G. & N. Ry. Co. v. Hall, 232 U. S. 94.) The plaintiff in the instant case had never measured the distance- between the dwarf signal and the main line track and had never acquired any definite knowledge of that distance. There is no proof tending to show that the plaintiff ever rode past this signal on a car of the size of the car in question or on any car other than an ordinary car, and no proof tending to show that he had seen any other person ride past such signal on the long ladder end of such a car. In Davis v. Gray, 8 F. (2d) 843, the court said: “On the present record, this was the first time that Gray had ever ridden by this platform on an engine of that type. He did not assume the risk unless the jury would have been warranted in finding that on this first trip, on such an engine, by that platform, he was bound to know that the . . . line (vertical and horizontal) of this platform, as the wider step of this engine passed by it, created a trap which might catch his heel and pull him from the engine under the train. This falls very far short of being substantial evidence for the jury that the danger encountered was open, obvious and apparent. ’ ’ The fact that the plaintiff had ridden past the signal on the sides of ordinary cars without being struck by the signal, fairly tends to prove that the signal was not ordinarily dangerous to those so engaged, and to raise the inference that the plaintiff had reasonable grounds to believe and did believe that there was no danger to be anticipated at the time in question. The jury would have been justified in believing that plaintiff was injured not because he assumed any unusual position on the side of the car but because of the car being unusually wide and being so built as to prevent plaintiff’s legs near his knees from being in close to the side of the car so that they necessarily projected outwardly from the stirrup. Plaintiff had the right to assume that the defendant would not send him into a place of danger which could be remedied by the exercise of ordinary care on defendant’s part. The undisputed fact that the plaintiff at the time of and immediately before passing such signal was in the performance of his duty in looking upward to watch the semaphore signals controlling the movement of this train could reasonably be considered by the jury as preventing him in the exercise of reasonable care from knowing or appreciating the immediate risk and danger that he was subject to in passing the signal. English, the crossing flagman, testified that as the car in question passed him in the particular movement he saw the plaintiff and Baughman riding on the right side of the car in the usual and customary upright position occupied by brakemen in passing that particular place in doing that work, and that he had ridden past such signal in that manner and position without difficulty on numerous occasions, and there was nothing about the circumstances that made him think he could not get by such signal.

In our opinion the question of assumption of risk on the part of plaintiff was a question of fact for the jury, and there was no error in refusing to direct a verdict for defendant on such ground.

It is next contended by defendant that the trial court erred in admitting the testimony of the witness, Osborn, who testified as an expert on behalf of plaintiff. Over the objection of defendant, Osborn was allowed to give his opinion that it would be practicable from a railroad engineering standpoint either to reduce the height of the dwarf signal by at least 15 inches, or to move the signal and the passing track further to the west and away from the main line track, and that either change could be made with little expense to the railroad. Before being allowed to express such opinion Osborn had testified to having taken measurements of the dwarf signal, of its relative location with reference to the tracks, of the distances between the rails of the tracks, and of a box car identical with the car in question, and testified as to other measurements. Under the McDade case, supra, and many other cases cited, the question of the practical necessity of the dwarf signal being in the dangerous position that it was in was a very material question. As the record stands, aside from the question of whether such answer was a mere conclusion of the witness, the record shows that from a practical standpoint there was no necessity for such signal being in a dangerous position. Defendant offered no evidence to the contrary. Therefore, in any event, there was no error in allowing the witness to express such opinion.

Defendant urges that the witness was not sufficiently qualified to testify on engineering problems of this nature. The record shows that after Osborn received his degree of electrical engineering, he was employed from 1900 to 1926 as chief engineer for the American Oar & Foundry Company (manufacturers of railroad cars and equipment), and from 1926 to the date of the trial, as a private consulting engineer. Whether a witness is competent to give an expert opinion is a question of fact for the trial judge, and can only be reviewed where there has been a grave abuse of discretion. (Bonato v. Peabody Coal Co., 248 Ill. 422, 426.) On this record we do not believe that the trial court abused its discretion in permitting Osborn to testify on these points.

Defendant complains that it did not receive a fair and impartial trial by reason of certain statements alleged to have been made by the trial judge to the entire jury panel before the trial of this case began. These statements do not appear any place in the record or report of the trial proceedings, and are only made to appear from an affidavit attached to defendant’s motion for a new trial. It is well settled that the only proper method of showing such matters is to make them a part of the report of proceedings (formerly the bill of exceptions) and that ex parte affidavits cannot be used for this purpose. (People v. Gapello, 282 Ill. 542; Peyton v. Village of Morgan Park, 172 Ill. 102.)

Moreover it appears that defendant took no action whatever to make and preserve its objections to the remarks of the trial judge until the filing of its motion for a new trial. Our courts have consistently held that error cannot be predicated upon the conduct of a trial judge to which no objection was made at the time. (Burke v. Molloy, 294 Ill. App. 442.)

Defendant next complains of certain instructions given by the court on behalf of plaintiff. Plaintiff’s instruction No. 1 to which objection has been taken by defendant, told the jury in effect that if the defendant was found to be negligent and that such negligence was the proximate cause of plaintiff’s injury, then plaintiff was not to be regarded as having assumed the risk of such negligence unless the jury found that he was aware of such negligence and fully appreciated the risk or danger therefrom, or that such negligence and the risk and danger therefrom were so open and plainly observable and obvious, that plaintiff must be presumed to have had knowledge thereof.

Defendant’s argument is that under the evidence there could be no dispute that plaintiff was aware of the risk because the dwarf signal had been in the same place for 24 years, and that plaintiff knew of its location and therefore the instruction was erroneous because it submitted this question of knowledge to the jury. As we have already pointed out, the mere location of the signal was not enough so that we can say, as a matter of law, that the plaintiff was fully aware of the danger incident to riding past the signal on an unusually wide box car, of the type that he was riding at the time of the accident. The signal may have been safe for every other trip but this one, and we cannot say that all reasonable men would agree that plaintiff should have appreciated the danger on this one occasion before he was injured. We see no error in the instruction as given.

Instruction No. 2 is a lengthy instruction in which plaintiff has attempted to incorporate all of the material facts in evidence, and to apply the applicable rules of law thereto. Defendant has not set forth the full instruction in its brief, but has contented itself with the general argument that the instruction did not incorporate all of the elements involved in the case. We have carefully examined the instruction and believe that it included all of the material facts upon which plaintiff based his right to recover, and that it clearly sets forth the principles of law applicable to such facts.

Defendant objects to plaintiff’s instruction No. 3, because the jury are permitted in considering the question of the plaintiff’s damages, to take into consideration any present or future pain and suffering of body and mind that plaintiff may have suffered on account of his injuries. Defendant contends that mental suffering has never been an element to be considered by a jury in awarding damages. We do not so understand the law. Mental pain that is the direct and necessary result of physical pain is a proper element of damages in a case of this nature. (Chicago City Ry. Co. v. Anderson, 182 Ill. 298; Chicago Consol. Traction Co. v. Schritter, 222 Ill. 364.)

This case has been ably presented by counsel for each side. However, in the brief of' plaintiff appellee appears a statement, or rather a misstatement, which we feel we cannot pass by without comment. In such brief it is stated that the United States Supreme Court in Chicago R. I. & P. By. Co. v. Ward, 252 U. S. 18, said: “He does not, however, assume such risks as are created by the master’s negligence, nor such as are latent, or are only discoverable at the time of the injury. The doctrine of an assumption of risk is wholly dependent upon the servant’s knowledge, actual or constructive, of the dangers incident to his employment. Where he knew, or . . . should know, the risk to which he is exposed, he will, as a rule, be held to have assumed them; but where he either does not know, or, knowing, does not appreciate such risk, and his ignorance or non-appreciation is not due to neglig*ence or want of care on his part, there is no assumption of risk on the part of the servant, preventing a recovery for injuries. ’ ’ Even a mere cursory examination of such opinion discloses that the language quoted was not an expression of such Supreme Court but was merely a quotation of the words used by the trial court in charging the jury, and that, instead of approving or using such language the Supreme Court said: “. . . this charge as to the assumption of risk was not accurate, in stating without qualification that the servant did not assume the risk created by the master’s negligence.”

There being no reversible error, the judgment of the trial court is affirmed.

Affirmed.