text:
    Jacoby B. Jacobsen, Appellant, v. Walter J. Cummings and Daniel C. Green, Receivers, et al., Appellees.
    Gen. No. 41,904.

      Opinion filed April 20, 1943.
    H. H. Patterson, of Chicago, for appellant; Edmund C. Maurer, of Chicago, of counsel.
    Frank L. Kriete, Warner H. Robinson and Arthur J. Donovan, all of Chicago, for appellees; John R. Guilliams, of Evanston, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

This action was brought by plaintiff, Jacoby B. Jacobsen, to recover damages for personal injuries alleged to have been sustained by him on May 24,1939 by reason of defendants’ negligence. At the close of plaintiff’s evidence defendants’ motion to direct a verdict in their favor was denied and a similar motion made by defendants at the close of all the evidence was also denied. The cause was submitted to a jury which found the defendants guilty and assessed plaintiff’s damages at $10,000. Thereafter the trial court granted defendants ’ motion for judgment notwithstanding the verdict and entered judgment in favor of defendants and against plaintiff. Plaintiff appeals.

Plaintiff’s complaint alleged substantially that on May 24,1939 defendants were common carriers of passengers for hire; that they were in possession, control of and operating a certain northbound streetcar on Wabash avenue at its intersection with Wacker drive; that said streetcar came to a stop at the regular stopping place on Wabash avenue just south of Wacker drive; that plaintiff was in the act of boarding said standing streetcar when it started with a sudden and violent jerk and he was thereby thrown to the street and injured; and that he was at all times in the exercise of ordinary care for his own safety.

Defendants’ answer denied all the material allegations- of plaintiff’s complaint.

Plaintiff contends that “defendants were negligent in starting said streetcar as plaintiff was in the act of boarding it; that they did not afford him reasonable time and opportunity safely to board said streetcar; that said streetcar was negligently started while he was in the act of boarding it, causing him to be thrown and injured. ’ ’

While one of defendants’ northbound Wabash avenue streetcars was stopped to take on and discharge passengers at its regular stopping place on the south side of Wacker drive, plaintiff, in attempting to board said streetcar, took hold of the center bar on the rear platform thereof with his right hand and placed one foot on the step leading up to said rear platform. When he was in that position “the car took a sudden jerk forward at a fairly good rate of speed.” As a result of such jerk plaintiff was thrown off his balance. His feet landed on the street and he continued to hold on to the center-bar with his right hand. Plaintiff testified that “from where I tried to get on when the car was standing until I finally landed in the street, as far as I remember, I went to the middle of Wacker drive and fell there. So far as my hold on the bar was concerned, I could not hold on any longer. When I went down I fell on my left side. I was running along holding onto the car and trying to get my bearings, but it was impossible.” He further testified that he thought the streetcar traveled 80 to 90 feet after he fell. He stated on cross-examination that he held onto the center bar of the car after the latter started up until he reached about the'middle of Wacker drive, which was about 70, SO or 90 feet, when he could hold on no longer and was thrown to the pavement; that after the streetcar started it reached a speed of about 15 to 20 miles an hour, which was “faster than I could catch up with”; and that he did not let go his hold on the center bar “because then I tried to straighten myself up and get on it. ” It is a fair inference that when plaintiff used the expressions that “he was trying to get his bearings” and that “he was trying to straighten himself up ’ ’ that he meant that he was trying to get his feet in a proper position so that he could coordinate their movement with the movement of the streetcar.

In passing upon defendants’ motion for judgment notwithstanding the verdict the trial court was bound to act in accordance with the established rule of law that the evidence most favorable to plaintiff with all its reasonable inferences must be taken as true (McCarthy v. Rorrison, 283 Ill. App. 129), and that explanatory, conflicting or contradictory evidence must be excluded from consideration.

In view of plaintiff’s evidence it must be conceded for the purposes of this appeal that plaintiff was in the exercise of ordinary care while he was in the act of boarding the standing streetcar and that defendants’ servants were guilty of negligence in starting the streetcar from its standing position while plaintiff was in the act of boarding it.

Defendants seem to infer that if plaintiff had let go of his handhold simultaneously with defendants’ negligent conduct in starting the streetcar or if he had let go of his handhold at some indefinite point after the car had been negligently started he would not have been injured. These inferences are not permissible under the only evidence that may be considered on this appeal.

It is defendants’ position here and it was undoubtedly the theory upon which the trial court entered the judgment notwithstanding the verdict that, while plaintiff was in the exercise of due care in his original attempt to board the standing streetcar, he was guilty of contributory negligence as a matter of law in maintaining his hold on the center bar of the platform and attempting to board the streetcar after it was in motion. In view of the evidence and the reasonable inferences that may be drawn therefrom we are of opinion that plaintiff was not guilty of contributory negligence as a matter of law but that the question as to whether he was or was not guilty of contributory negligence under the circumstances was one of fact for the jury to determine.

As heretofore shown, after plaintiff was. thrown from the car he tried to get his bearings — he tried to straighten himself up. In other words he was thrown off the car in rather a tangle, from which he tried to extricate himself. It must be remembered that plaintiff held onto the bar of the car with his right arm outstretched in front of him and with his body and feet in an awkward position from which he tried to “straighten himself up.” Defendants argue in effect that if plaintiff had let go of the center bar at the time he was thrown from the car or shortly thereafter he would have escaped injury. It might be said with just as much consistency that so long as plaintiff was in for a fall in any event he might as well have taken his fall and had it over with when the jerk of the car threw him off. It is a reasonable inference, considering his awkward position, that if he had let go of the bar when the car jerked him off, he most certainly would have been thrown to the" pavement and injured. We think that it was a matter of natural impulse and instinct with plaintiff, as it would have been with any ordinarily prudent man, to hold onto the bar to save himself from a fall, if possible.

Defendants state in their brief that “the emergency rule has no reasonable application to the facts disclosed by plaintiff’s evidence” and that said rule “only applies to an attempt to escape from sudden danger in the creation of which the injured person had no part and where the injured person is required to act immediately and without time to think or consider.”

It cannot be seriously questioned but that plaintiff was confronted with an emergency created by defendants and without fault on his part. From the instant the streetcar “took a sudden jerk forward at a fairly good rate of speed,” throwing plaintiff from the step of the car, he was compelled to choose between two alternatives. He had to either relinquish his hold on the center bar immediately or within a short distance, in the awkward position that he was, and run the risk of being thrown violently to the ground and injured or to hold onto the center bar while he was endeavoring to get on his feet properly so that he might get on the streetcar and thus save himself from injury. Plaintiff did attempt to escape from the sudden danger of being precipitated to the pavement by maintaining his hold on the center bar. He was required to act immediately and without time to think or consider. It is apparent that he chose what he thought was the wisest and safest course to get himself out of his perilous dilemma. No doubt plaintiff could have let go of his handhold before he was forced to do so, but it cannot be fairly concluded that by so doing he would be withdrawing to a place of safety. To have let go of the car in his then predicament plaintiff would have had to risk almost certain injury. Through no fault of his own he was confronted with an emergency fraught with sudden danger to himself and it cannot be said that all reasonable minds would agree that he did not act as an ordinarily prudent person would have acted under the circumstances.

It is suggested in defendants ’ brief that a reasonably prudent man might run along with the car “ 5, 10 or 15 . feet” holding onto the center bar but not for a distance of 70, 80 or 90 feet as plaintiff did. It must be borne in mind that it cannot be reasonably inferred from the evidence that plaintiff could have released his hold without injury to himself within 15 feet after the streetcar had been negligently started or within any other distance thereafter until he had to let go because of the increased speed of the car. He continued holding onto the bar in the same awkward position until he was forced to let go. The entire occurrence was over in a matter of seconds and we think it a fair inference that unless the streetcar was stopped ’ plaintiff would have been injured if he had let go of the bar at any time after the streetcar had been negligently started. We also think it a fair inference that plaintiff, confronted as he was with sudden danger, felt that he could regain his footing and board the car before ■ it had attained any considerable speed. When counsel for defendants was asked upon oral argument how long in his opinion plaintiff could have held onto the center bar .of the platform under the circumstances in evidence «without having been guilty of contributory negligence, he stated in effect that that was a matter of how one looked at it. This statement, is certainly incompatible with defendants’ contention that all reasonable minds must agree that plaintiff was' guilty of contributory negligence.

In Joliet Street Ry. Co. v. Duggan, 45 Ill. App. 450, the facts were'somewhat similar to the facts in this, ease. There the plaintiff’s evidence showed that she. attempted to board a standing streetcar; that just as she had one foot upon the step and her hand .upon the rail the car started suddenly and she was dragged sev-. eral feet and then thrown to. the. ground,. ; It .was, contended by the defendant that she was guilty of contributory negligence in holding onto the car after it started in motion instead of letting loose of it as she might have done. In that case the court said at pp. 451, 452:

“By continuing her hold upon the car after it started was appellee guilty of such contributory negligence as to preclude her from a recovery? The agitation and excitement which the sudden starting of the car doubtless produced upon the mind of appellee would appear to be sufficient reason for not holding her legally responsible for contributory negligence. The trying circumstances under which she had been placed by the negligent and wrongful act of appellant precluded that exercise of judgment of which the human mind is capable under less exciting conditions. Apropos is the language of Mr. Justice McAllister in C. & A. R. R. Co. v. Becker, 76 Ill. 25: ‘When the defendant has been guilty of negligence, but seeks to defend on the ground that the party injured might have avoided the injury by the exercise of ordinary care and caution, it sometimes happens in such cases that, as a direct.- and immediate cause of the defendant’s negligence, the party injured was placed in a position of compulsion and sudden surprise, bereft of independent moral agency and opportunity of reflection. In such a case, it would be against the common judgment of mankind to hold the injured party either morally or legally responsible for contributory negligence. ’ ”

In Smith v. Chicago City Ry. Co., 169 Ill. App. 570, the plaintiff had been riding as a passenger on one of defendant’s streetcars with her four year old son. When the car stopped at an intersection two other passengers alighted first and then plaintiff helped her little boy down onto the- ground, still holding his left hand and started to step down from the car herself. While she was in this position with one foot on the step and the other on the platform of the car and with her left hand grasping the upright handrail and her right hand grasping the boy, the ear started forward. The boy continued to cling to plaintiff’s hand and after the car started was being dragged along, and plaintiff then jumped from the car- to the ground and was injured. There was a verdict and judgment in her favor in the trial court and on appeal it was contended that the starting of the car was not the cause of plaintiff’s injury because her act of jumping from the car intervened between such starting and her injury, and also that her conduct in continuing to hold onto the child after the car started and in then jumping from the car amounted to contributory negligence. While the facts in the Smith ease are not in all respects similar to the facts in the instant case, the language used by the court therein concerning the emergency rule is applicable to the facts here. In that case the court said at p. 573:

“We are of the opinion that this contention is not sound. There existed a situation at the time the car started. The plaintiff had seen to it that her boy was upon the ground, and was herself in the act of alighting. Naturally the child clung to its mother and the mother to the child. To have shaken herself loose from the child after the car started and remained upon the car would have been to subject her child, in all probability, to injury. She was by the starting of the car under the circumstances placed in a position of being compelled to choose between two alternatives, subjecting her child to injury, or running the risk of injury to herself in attempting to alight from the car after it had been negligently started. She chose to alight and save her child. In so doing we think she acted reasonably and without negligence. In starting the car under the circumstances, the defendant was clearly negligent. A carrier may not negligently place a passenger in a situation where the passenger is1 bound to choose between two courses at her peril, and then interpose the defense that the act of the passenger was the intervening cause of the injury.

“Upon the evidence we are of the opinion that the jury were justified in finding that the defendant was negligent, and that its negligence caused the injury to the plaintiff; and that the plaintiff was not guilty of contributory negligence. ’ ’ (Italics ours.)

In Burger v. Omaha & C. B. St. Ry. Co., 139 Iowa 645, the facts were almost identical with the facts here except that in that case the plaintiff ran along side of the car only a matter of several feet, holding onto the rail of the car with his hand. The reasoning of the court and its conclusions in that case are peculiarly applicable here. There the court said at pp. 650, 651, 652, 653, 654, 655:

“Some of the witnesses for defendant testified that plaintiff continued his hold upon the handrails after the car started, and ran along beside the car a distance of several feet before his hold was broken or relinquished, and he fell. Predicating its request on the testimony to this effect, defendant asked an instruction directing the jury that, if the facts were found to be as thus-testified to, plaintiff could not recover, because the wrongful starting of the car, if it was wrongfully started, was not the proximate cause of plaintiff’s injury. In a further request the court was asked to say that, upon a state of facts so found, defendant could not be held liable for the injury sustained, and this because, ‘by holding to the moving car and attempting to get on the same, plaintiff assumed any danger of injury arising therefrom.’ . In a still further request the court was asked to say that upon a state of facts so found plaintiff was guilty of contributory negligence as a matter of law, and hence could not recover. Each of these requests were refused, and the refusal as to each is denounced as error. We think there was no error. According to onr understanding, it is no part of the contention of counsel that plaintiff acted in violation of any duty he owed to himself when he seized the hand rails and made' his initial attempt to step upon the car platform. On the contrary, as we gather, this seems to be the theory of counsel, upon which the requests are based: That, conceding the premature starting of the car, and that the same was negligent, if the immediate effect thereof was not to throw plaintiff to the ground, but, instead, he maintained his handhold on the rail, and ran alongside for some distance in an effort to accomplish a boarding, but finally relinquished his hold because unable longer to maintain the same, and there being no intervening act of defendant following the starting of the car, save the continued forward movement thereof, then the fall was not the proximate result of the wrongful act in starting the car, and, as that act is the sole matter of negligence complained of, as matter of law there can be no recovery. So, also, that under such circumstances the act of plaintiff in running alongside amounted in law to contributory negligence, and he assumed.all risk of accident in so doing. The theory is well conceived in the interests of defendant, but it will not bear analysis. Of necessity it is based upon the supposition that the negligence of defendant ceased of effect once the immediate shock, incident to the premature starting of the car, had spent its force; that with the forward movement of the car, due care resumed its dominant sway. To hold in conformity with the view thus taken would be to write a new chapter on the law of negligence. Instead, it is the law, as universally applied, that where one by his negligent act thrusts another into a position of danger, the act— ánd the negligence by which it is clothed — continues and controls as long as the danger continues, unmodified by any independent, affirmative, and voluntary act on the part of the person affected, or by some intervening controlling circumstance. And it is for the jury to say at what point or juncture, and in what particular, such person ceased to be dominated in his conduct by the act of negligence, and resumed voluntary control over his own actions. To search out and 'cite authorities in support of these conclusions would seem to be a work of supererogation. The case, as here made, is quite different from one where an intending passenger approaches a moving car and attempts to board it. . . . Here, however, the plaintiff occupied the relation of a passenger when the start of the car was made. 3 Thompson, Negligence, Section 2638. Another question — simple in its last analysis — is this: Where did the force which led up to and culminated in the accident which befell plaintiff have its origin? If traceable to the negligent conduct of defendant in starting and moving forward the car, and the accident would not have happened but therefor, then such conduct must be regarded as the proximate cause and the question in the case — if, indeed, the facts permitted of a question — was one for the jury.

“Giving attention, for a moment, to the question of contributory negligence, as made by the request, there is no theory on which to conclude as matter of law that due care for his own safety required of plaintiff that he release his hold upon the car the moment he was made aware of the fact that the same was in motion. Whether or not a person — brought to face an emergency — has acted with due care for his own safety is to be determined in all cases by the method of conduct. If what was done was no more than might have been expected from an ordinarily prudent person, placed under the like circumstances, then due care is not wanting. And if in the situation presented there, is room for reasonable minds to differ as to the proper conclusion to be drawn, the question is one for a jury. And, as far as we know, all the opinion and text writers agree upon this. Now, as we understand it, the car platform — approached by a step — was not guarded by a door or gate, so that, in getting on and off, passengers were not dependent on any action of the employees in charge of the car. As we have seen, plaintiff had partially-effected a boarding when the-car started. And if the witnesses for defendant were to be believed, the car started slowly and without any jerk. It is not improbable that reasonable minds might conclude that plaintiff was not negligent in trying to regain his footing on the car step, and thence to the platform. The question was therefore for the jury. Of course, if plaintiff on his own voluntary motion — and wholly disconnected and independent from the sudden start — ran alongside the car, and his fall was proximately due to some cause transpiring after the start was made, there might be room for the application of the principle of the cases on which appellant relies. But in the evidence there was no warrant for, a finding that such was the situation with which the jury had to deal. As the argument concedes that the starting of the car was negligent, and assuming the truth of the testimony of defendant’s witnesses, in our view the only question in the case is whether plaintiff was guilty of contributory negligence in not releasing his hold, at once, upon being made aware of the starting of the car. And such, by all the authorities, was a question for the jury.

“Further, on the subject of contributory negligence, the defendant requested the court to instruct the jury that, if found that plaintiff retained his hold upon the car after the start was made, and ran alongside the same for some distance before he fell, ‘said action would be prima facie negligence on his part, . . . and he can not recover, unless he has shown, by a preponderance of the evidence, that said act was excusable by reason of danger, real or apparent, to him — that of falling and receiving injury, if he should release his hold upon the car.’ This request was also refused, and, as we think, rightly so. Fairly analyzed, it is the doctrine of the request, that, on finding that plaintiff retained his hold upon the car, and ran alongside thereof, justification for his conduct in so doing was possible in law only on the theory that it was, or appeared to him to be, necessary to so act in order to prevent injury to his person. It excludes the idea that justification for his conduct was possible, even though his motive in so acting was to regain his footing and complete an entrance in the car. By the great weight of authority it is the rule that in the case of one not yet a passenger contributory negligence does not arise, as matter of law, from the mere fact that an attempt has been made to board a moving car. 3 Thompson, Negligence, Section 3536. This being so, on no theory is it possible to say that one who sustains the relation of a passenger, and who has been thrown from his position by an act of negligence in the handling or operation of the car, must be held guilty of negligence per se if he attempts — either as the result of impulse, or in the reasonable belief that he can succeed — to regain his position and accomplish a boarding of the car. And, especially, such ought not to be the rule where, as here, according to defendant’s witnesses, the start of the car was easy and slow.

“In the 11th instruction, given by the court on its own motion, the subject of contributory negligence was dealt with. In the instruction the law of the case— after advising the-jury that plaintiff could not recover if, by his own negligence, he contributed to the happening of the accident and injury of which he complains — was thus stated: ‘ The fact, if it be a fact, that plaintiff did not let go of the car, but clung to the rail and ran along the side of the car trying to get on, after it had started, will not necessarily show that he was guilty of contributory negligence. If, by reason of the starting of the car at the time and in the manner in which it was started, an emergency arose, then, even though plaintiff’s action vías ill judged if, under all the facts and circumstances shown by the evidence, he acted as would a man of ordinary prudence in a like situation, and had used ordinary care in his original attempt to get on the car, then he was not guilty of contributory negligence,’ etc. This instruction is assailed on the grounds: ‘(1) That there was neither pleading nor evidence upon which to submit to the jury the question of such emergency; (2) that the instruction failed to tell the jury what would have constituted contributory negligence of the .plaintiff in clinging to the car and running along beside it; (3) that the said instruction was confused and misleading upon the question of contributory negligence, and incorrectly stated the law on the subject.’ There is no merit in any of these grounds. Most certainly it is within bounds to say that, in the sudden and unexpected starting of a street car, while a passenger is attempting to board the same, there is presented an emergency. According to the lexicographers, an emergency is a sudden or unexpected happening or occasion calling for immediate action. Webster’s Dictionary; Century Dictionary. And in the pleading it was alleged, and without dispute the evidence made proof, at least that the car was started suddenly and without warning. In a previous instruction the court had correctly defined negligence, and the jury had been told that it was incumbent on plaintiff to show his own due care; that ‘on his part he was bound, where attempting to get on the car, and in all his conduct with relation to it, to exercise reasonable and ordinary care for his safety, and if he failed so to do, he was negligent, and can not recover.’ We think no more could, in reason, be required. The instruction correctly stated the law, and without confusion.”

No Illinois case has been cited and we have been unable to find one wherein the facts are so nearly comparable with the facts in the instant case as are the facts in the foregoing case. We deem it unnecessary to analyze and discuss the Burger case in detail since the reading of same demonstrates its applicability. We have quoted extensively from that case because we think the reasoning of the court and its conclusions therein completely answer every question raised by the defendants in the case at bar.

In Lucas v. Marquette City & Presque Isle Ry. Co., 136 Mich. 142, the car on which plaintiff therein was riding stopped at the regular stopping place. He was the last to leave from the rear platform and stood with one foot on the lower step ready to alight when the car started and he was thrown to the ground and injured. He fell from the car 75 feet from the stopping place. He testified that he held onto the rail with one hand and had his dinner pail in the other. On appeal from a judgment for the plaintiff in that case the Supreme Court of Michigan said at p. 143:

“The fact that plaintiff fell 75 feet from the stopping place is not conclusive that he jumped from the car. There is evidence that he had hold of the rail with his left hand, and, with his dinner pail in his right, stood with one foot on the lower step, in the act of alighting, and that he held on for a while after the ear started. The question was clearly one for the jury.”

Defendants cite numerous authorities in support of their contention that plaintiff was guilty of contributory negligence as a matter of law. The only case cited where the facts are at all similar to the facts herein is Phillips v. Rensselaer & Saratoga R. Co., 49 N. Y. 177. In that case a train of cars slowed down and had about stopped when the plaintiff therein and others started to board various cars of the train. Plaintiff got his foot on the step of one of the cars but because of two men who got on ahead of him he was unable to get any further than the lower step. The cars were then jerked ahead and the plaintiff was jerked off the step but he did not let go of the handle. He ran alongside of the car and succeeded in getting on the step a second time but he had no more than done so when he was knocked off by a platform which stood close to the track about 60 feet from the point where he first attempted to get on. The train was going “very slow” when plaintiff first got on the step but by the time he got on the second time it was going at “a pretty good speed.” There the court held that plaintiff was guilty of contributory negligence as a matter of law on his own evidence that when he originally attempted to board the car it was in motion. That case is not applicable to the situation presented here. In the Phillips case the court also apparently assumed that when the feet of the plaintiff therein were first jerked off the step of the car, he could have let go of the handle without being injured, since it stated at p. 180 that “unless evidence "was given tending to prove facts explaining and justifying this conduct of the plaintiff, the nonsuit was proper.” In the case at bar there was evidence which tended to prove facts explaining and justifying plaintiff’s conduct.

We are impelled to hold that upon the only evidence which the trial court, was permitted to consider in passing upon defendants’ motion for judgment notwithstanding the verdict, said judgment was erroneously entered. Plaintiff made out a prima facie case that he was in the exercise of ordinary care for his own safety; that defendants were negligent in the operation of their streetcar and that their negligence was the proximate cause of his injury. Since there was evidence which showed or tended to show that plaintiff was not guilty of contributory negligence and that defendants were guilty of negligence, which was the proximate cause of plaintiff’s injuries, neither of these questions could be properly decided by the trial court as a matter of law but both were questions of fact for the determination of the jury.

The judgment of the superior court of Cook county is reversed and the cause is remanded for the disposition, of defendants’ motion for a new trial and for such further proceedings as are not inconsistent with the views herein expressed.

Judgment reversed and cause remanded.

Friend and Scanlan, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Sullivan

license: Public Domain

text:
    Regis Kelly, Appellant, v. Howard M. Fox, Individual Trading as Riverview Roller Skating Rink and Riverview Park Company, Appellees.
    Gen. No. 41,913.

      Opinion filed April 20, 1943.
    Rehearing denied May 4, 1943.
    Cecil L. Cass, of Chicago, for appellant.
    Lord, Bissell & Kadyk, of Chicago, for appellees ; Edward S. Crowell and Guy C. Baltz, both of Chicago, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff, Regis Kelly, as the result of the negligence of the defendants, Howard M. Pox, doing business as Riverview Roller Skating Rink and the Riverview Park Company, a corporation. On defendants ’ motion at the close of plaintiff’s evidence the trial court directed the jury to find defendants not guilty. The jury returned a verdict of not guilty and judgment was entered thereon. Plaintiff appeals.

The complaint alleged in substance that plaintiff went to defendants’ rink for the purpose of roller skating; that after paying his admission fee he was furnished with a pair of roller skates; that defendants through their agent carelessly and negligently adjusted said roller skates on plaintiff’s shoes; that defendants’ negligence in fastening and adjusting the skates was the proximate cause of plaintiff’s injuries; and that he was at all times in the exercise of ordinary care for his own safety.

Defendants’ answer denied the material allegations of plaintiff’s complaint.

Plaintiff testified that on November 22, 1939 he and his wife and several other couples went roller skating at the Riverview Roller Skating Rink; that he purchased his admission ticket, entered and, after checking his things, was given a pair of roller skates by an attendant after the latter had asked him the size of his shoes; that he took the skates and went over to a bench where another attendant placed the roller skates on his shoes, fastening and adjusting said skates, with a key or crank carried by him (the attendant) for that purpose; that “the skates seemed to feel all right . . . the skates appeared all right . ... so I skated over to a runway, which went around the main rink . . . and then I came back to a small rink . . . a practice or beginner’s rink ... I thought I had better go in there and see how I could get along on skates ... it was- a rather small place ... I had gone down to one end and came part of the way back when I felt my foot jar to the floor ... I was going very slowly . . . my foot suddenly hit the floor, and although I knew my foot was under me . . . still I was falling to the floor”; that at the time his foot “hit the floor or just prior thereto” he “had not noticed anything particularly about the skate”; that “immediately after I felt my foot hit the floor, I ended up on the floor, and my leg was in a position right here in front of me, with the skate hanging from the strap, which was around the ankle, and the clamps were off the shoe ... I moved the leg up this way, preparing to get up, when I noticed it pained me severely”; that he “did not try to get up”; that he called one of Ms friends who was near by and told him that he thought “there was something wrong with the leg ... it might be broken”; and that “my feet did not go out from under me; not that I know of. But this foot Mt the floor, and I had a sensation of standing on the leg. In other words, I could tell from the position that my leg" was in that I was standing on it and still I was falling; it was confusing.” Plaintiff further testified that the roller skates “fastened” with “a clamp on the front and strap on the back that goes around the ankle. ’ ’

He testified on cross-examination that he “had the skates on probably two minutes” and that he had skated slowly about “fifty or sixty feet” before he fell; that after the skates had been put on his shoes he “stood up as a person will almost naturally do, and stood on them with a little force, first on one, and then on .the other, to see if they were all right . . . I thought that they were on all right”; and that “I had watched the man put them on” and he appeared “to be putting them on all right.”

The shoes which plaintiff wore the night of the occurrence in question were offered and received in evidence. To properly fasten the skates they are adjusted so that the horizontal portion of the clamps fits over the sole of the shoe on both sides near the toe. There are five slight but well defined vertical indentations or marks on the left or inner side of the sole of plaintiff’s right shoe. These extend from the bottom of the sole approximately two thirds of the way up the side of the sole of the shoe. The skates are not in evidence and neither is there any evidence as to the character of the surface of the inner end of the horizontal portion of the clamp in question or of the inner surface of the vertical portion of said clamp. Plaintiff himself was the only witness to the occurrence but five members of his party testified that they reached him immediately after he fell and that they saw the roller skate hanging by the strap from his right ankle. As a result of the accident plaintiff suffered a spiral fracture of the tibia in his right leg.

Pláintiff’s theory is that “the evidence presented questions of fact to be determined by the jury; that it was contrary to law for the Court to direct a verdict on the evidence and that the Court should have allowed the jury to pass upon the evidence.”

Defendants rely upon the following propositions to sustain the judgment: “1. The trial court properly directed a verdict for the defendants because there is no evidence of negligence in the record or evidence from which a jury could reasonably infer negligence on the part of the defendants, (a) The existence of a certain fact cannot reasonably be inferred from the evidence when the existence of another fact, inconsistent with the first, can be inferred from the same evidence. (b) The presumption is in favor of the action of the trial court in directing a verdict for the defendants, and the plaintiff has failed to point out any evidence which overcomes that presumption.”

We are mindful of the rule that on a motion for a directed verdict for a defendant the trial court must consider the evidence in its aspect most favorable to the plaintiff and that all reasonable inferences arising from the evidence must also be taken most strongly in favor of plaintiff and of the further rule that negligence and contributory negligence are usually questions of fact to be determined by the jury, but after a careful examination and analysis of plaintiff’s evidence we are impelled to the conclusion that it does not show or tend to show that defendants were guilty of any negligence which proximately caused or contributed to plaintiff’s injuries.

In the first place it is impossible from plaintiff’s evidence to rationalize the manner in which he fell or just what caused him to fall. He said that the manner of his falling was “confusing.” When he was asked, “But at no time did your feet go out from under you?” He answered, “Not that I know of, no sir.” There is no evidence in the record that the clamps on the skate attached to plaintiff’s right shoe became unfastened before he fell. He stated in this connection that he “had not noticed anything particularly about the skate” before he fell. The first time he noticed “the skate hanging from the strap” was when he was on the floor. He watched the attendant put the skates on his shoes. They appeared to him to be all right and they felt all right. He stood up and tested each skate with his weight on same and they still felt all right. He skated slowly for about 50 or 60 feet before he fell and there was no indication that the skates had been improperly fastened and adjusted.

The evidence thus far discussed not only does not establish or tend to establish negligence on the part of defendants or their agents but affirmatively shows that defendants’ attendants or agents exercised due care in attaching the skates to plaintiff’s shoes.

The sole remaining - evidence to be considered is that concerning the indentations or marks on the inner side of the sole of plaintiff’s right shoe. In plaintiff’s brief it is stated that “the clamp marks on the right shoe show conclusively that the skate was not put on properly.” Because of these clamp marks plaintiff also concludes that the flange or horizontal portion of the clamp was not fastened over the sole "on the inner side of his right shoe.

While there is no evidence in the record. that the marks heretofore referred to were made by the clamp, defendants concede that it is" a reasonable inference that they were so made. However, the fact that there are vertical marks on the inner side of the sole of plaintiff’s right shoe extending two thirds of the way up, is equally consistent with the conclusion that the skate was attached properly and that the top portion or flange of the clamp was fastened over the sole of the shoe. Since there are no horizontal marks or marks parallel with the sole in or on the left side of the sole of that shoe, and it is reasonable to infer that there would have been a horizontal mark or marks if the inside end of the top of the clamp had been pressed in and fastened to the side of the sole, the horizontal portion or flange of the clamp must have been over or above the sole of the shoe. It may also be just as reasonably inferred that the skate was put on properly but that the violence of plaintiff’s fall forcibly detached the clamp from the shoe and caused the marks on the left side of the sole thereof.

In Coffin v. Chicago City Ry. Co., 251 Ill. App. 169, in holding that a peremptory instruction was proper under somewhat similar circumstances the court said at pp. 174, 175:

“Whatever may be the law elsewhere, it is the rule in this state, established by a large number of decisions, that the existence of a certain fact cannot be reasonably inferred from the evidence when the existence of another fact, inconsistent with the first, can be inferred from the same evidence with equal certainty; a fact cannot be established by circumstantial evidence unless the circumstances are of such a nature and so related to each other that it is the only conclusion that can be drawn therefrom.”

(To the same effect are Chicago Union Traction Co. v. Hampe, 228 Ill. 346, and Peterson & Co. v. Industrial Board, 281 Ill. 326.)

In the instant case if any reasonable inference at all can be drawn from the marks on the side of the sole of the shoe that the skate was improperly attached, it can with equal certainty be inferred from the same marks that the skate was properly attached. This evidence concerning the marks or indentations on the inner side of the sole of plaintiff’s right shoe, being the only evidence offered by plaintiff from which his charge of negligence could be deemed to have been established, the trial court properly directed a verdict for defendants.

The action of the trial court was presumptively correct, even though it directed a verdict in favor of defendants, and the burden is on plaintiff to overcome that presumption. In Brandt v. Brandt, 286 Ill. App. 151, the plaintiff appealed from a judgment entered on a verdict directed against her at the close of her case. In affirming the action of the trial court this court said at p. 154:

“The rule of law to be applied upon the submission of a motion of this character is well settled. The ultimate question to be decided upon such motion is whether there is any evidence in the record from which a jury could, acting reasonably in the eye of the law, return a verdict for plaintiff. If there is such evidence, the motion should be denied; if not, then the motion should be granted. Libby, McNeill & Libby v. Cook, 222 Ill. 206; Allen v. United States Fidelity & Guaranty Co., 269 Ill. 234; Devine v. Delano, 272 Ill. 166; Ginsberg v. Ginsberg, 361 Ill. 499.

“As the presumption is in favor of the action of the trial court, it is for plaintiff to point out evidence from which the jury could reasonably find in her favor under one of the counts of her declaration, and the ultimate question for our determination here is whether plaintiff has produced such quantum of evidence.”

Negligence is always a question of 'fact that must bo alleged and proved as averred. It cannot be- supported by mere conjecture or surmise, but must be made referable to some specific cause or defect. (Dobbins v. Brown, 119 N. Y. 188.)

Upon the record before us we are unable to discover any evidence of actionable negligence upon the part of defendants. Therefore the trial court properly directed the verdict for defendants and entered judgment thereon.

Judgment affirmed.

Friend and Scanlan, JJ., concur.


author: Mr. Justice Friend

text:
    Edward M. Kroer, Appellee, v. Charles Smith, Appellant.
    Gen. No. 42,329.
    Opinion filed April 20, 1943.

      George A. Bosomburg, of Chicago, for appellant. '
    Ditchburne & Lounsbury, of Chicago, for appellee; Nicholas J. Bohling and Carl L. Steiner, both of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

July 23, 1927, defendant, Charles' Smith, executed a promissory note for $1,800, payable to Emma Kroer of Hammond, Indiana, on or before two years after date, bearing interest at the rate of 7 per cent, and providing for attorneys’ fees. Mrs. Kroer died in 1934, leaving a ivill which was probated both in Lake county, Indiana, and Cook county, Illinois. The note was not listed among the assets of the estate in either jurisdiction. February 14, 1941, her son, Edward M. Kroer, claiming to be the legal holder and owner of the note, had judgment thereon by default in the circuit court of Cook county for $3,149.65, which included interest and attorneys’ fees. December 5, 1941, defendant had leave to defend, and when the cause was heard on its merits January 16,1942, the court reaffirmed the judgment of February 14, 1941, from which defendant has taken an appeal.

Three principal defenses are interposed. It is first urged that the undisputed testimony and manifest weight of the evidence disclose that the debt evidenced by the note was settled between defendant and the payee, "Emma Kroer, during her lifetime. Defendant was engaged in the real estate and insurance business in Hammond, and over a course of years carried on various business transactions for and with deceased, as indicated by several exhibits, including accounts and contracts with and correspondence ■ between him and Mrs. Kroer. He testified that early in September 1931 he had a conversation with deceased at his office in Hammond in the presence of Fred Hacker, an office associate who was also engaged in the insurance business, pertaining to the settlement of their accounts, which showed an indebtedness due defendant; that “We settled everything at that time. . . . According to the agreement she was to pay me $2,000. . . . She owed around $1,700 on the contract. . . .”; that the settlement included his liability on the note, which Mrs. Kroer then promised to cancel and surrender; that she repeatedly told him she had lost or misplaced the note but assured him she would return it as soon as it was found. This evidence was corroborated by Hacker, who testified that he knew Mrs. Kroer and was present about September 1, 1931, when she came into the office to see defendant. “The first thing he asked her in my presence, did you bring that note for $1,800 marked paid that we agreed on, and she said, ‘Mr. Smith you and I have had a lot of business dealings and don’t worry about the note. I can’t find it’ ”; the defendant thereupon reminded her that she had promised to bring it and she replied, “I will, just as soon as I can find it.” As heretofore stated, the note was payable to Emma Kroer and bore no indorsement. It appears from the evidence that plaintiff found the note in a book in 1939 shortly before his suit was filed, a circumstance which lends support to the conversation testified to by defendant and Hacker that Mrs. Kroer had lost or misplaced the note and assigned that as her reason for not canceling and returning it to defendant. Plaintiff did not testify upon the hearing, and the foregoing evidence stands undisputed. Upon trial defendant’s counsel called the court’s attention to the fact that the note had not been inventoried among the assets of the estate in either jurisdiction, and although this fact was not adduced in evidence, there was no denial thereof when the statement was made. Under the circumstances we are of opinion that the finding and judgment of the court are contrary to the manifest weight of the evidence.

It is next urged that plaintiff cannot recover on the promissory note payable to deceased, without proving that he is the owner thereof. Although he alleges ownership in his complaint, there is no evidence in the record that plaintiff has any title to the note or any right to sue thereon, except that he found it in a book shortly before suit was instituted and long after his mother’s death. The law is well settled in this State that although negotiable instruments may be the subject of a valid gift without indorsement or written assignment by the payee if delivered to the donee by the payee with intent to transfer title, nevertheless “the burden of proof of the gift is on the donee to prove all facts essential to a valid gift, and these facts include the delivery by the donor to the donee with intent to pass the title.” Collins v. Ogden, 323 Ill. 594. In that case the court cited and referred to Rothwell v. Taylor, 303 Ill. 226, which involved the gift of negotiable instruments without indorsement or written assignment by the payee to her niece, and the court held that although the niece had possession of the notes and certificates before the payee’s death and claimed to own them, such proof did not meet the requirements of the law to pass title. In the Collins case the court quoted from Porter v. Cushman, 19 Ill. 572, as follows: “ ‘If it [the negotiable paper] is found in the hands of a stranger without such legal transfer, the presumption is that it has been lost or purloined or otherwise improperly got into circulation’ and went on to cite later Illinois cases as additional authority for the rule that “the legal holder of a note, alone, can maintain an action on it.” In proceedings of that character it is essential to the plaintiff’s right to recover to show that at the commencement of the suit he had the legal title to the negotiable instrument, and the mere possession thereof, payable to order and not indorsed by the payee, is not, alone, evidence of title, either legal or equitable, in the possessor, but the burden is on the possessor to prove his equitable title by showing a delivery to him with intent to pass title. Collins v. Ogden, supra; Elvin v. Wuchetich, 326 Ill. 285. Since defendant’s answer denied plaintiff’s ownership and his right to sue on the note, it was plaintiff’s duty to prove ownership thereof. This he failed to do, and therefore he cannot recover on it.

It is urged by plaintiff, however, that he proved himself to be the legal holder of the note when he recovered the original judgment before it was opened for the purpose of giving Smith leave to defend. This contention is predicated upon Dulle v. Lally, 167 Ill. 485, wherein, after the lapse of many terms of court, defendant was given leave to plead, “the judgment to stand.” He did plead in pursuance of the order, and upon trial the issue was found against him. The Bulle case is not authority for the contention that a judgment, under such an order as was entered in that case, can be treated as res adjudícala or estoppel by verdict; the court merely held that “Neither this motion, nor any showing made, nor any ruling of the court in respect thereto, appears in the bill of exceptions. . . . In this state of the record the previous errors of the court, if any there were, were waived, and appellant can take no advantage by now assigning them here.” Moreover, the order entered in the Bulle case was unlike that in the case at bar, where the judgment was ordered to stand as security. Hnder such circumstances the courts have consistently held that the order destroys the judgment for all purposes except as security. In First Nat. Bank of Palatine v. Hahnemann Institutions of Chicago, Inc., 356 Ill. 366, where the order provided that the judgment order stand as security until the further order of the court, it was held that “Upon the entry of such an order, the judgment exists only for that purpose.” In the early case of Borchsenius v. Canutson, 100 Ill. 82, the following quotation from the opinion indicates that this view was adopted as early as 1881: “Were the judgment which was entered on the cognovit still subsisting, it is easily understood how there would be an estoppel; but as that judgment has been opened, and the defendant admitted to plead, it is not perceived what there is of estoppel in the case. The judgment is to be looked upon as if it were not.1 The right given to plead is general, with no restriction whatever, and we do not see that the case stands differently in this respect from what it would if the suit were one in the form of an ordinary action upon the note by summons.” In Morris v. Taylor, 199 Ill. App. 588, the court required defendant to take the initiative and introduce his defense first, before plaintiffs were put to their proofs. This was held to be erroneous procedure, the court saying: “When defendant was let in to plead, the case stood for trial upon the pleadings, which cast upon the plaintiffs the burden of proving their case under the law in the same way they would have been compelled to do had there been no judgment entered by confession.” The law of Indiana is to the same effect. Dougherty v. Wise, 25 Ind. App. 398.

As an additional defense it is urged that plaintiff’s suit and the judgment are founded on a void instrument. This contention is predicated upon the fact that the note sued on was payable in Indiana, and therefore its validity must be determined by the laws of that State, which has a statute known as the Indiana Intangibles Tax Act providing that unless the intangibles tax is paid and a tax stamp is affixed every year on promissory notes and other intangibles, such notes “shall be null and void”; and it is argued that since the promissory note in question has no tax stamp attached, the instrument is void. Counsel for the respective parties place different interpretations on the statute as construed by various decisions, but in view of our conclusion that the other defenses interposed are valid and bar recovery, we consider it unnecessary to discuss this question.

For the reasons indicated we are of opinion that the judgment of the circuit court was erroneously entered, and it is therefore reversed. .

Judgment reversed.

Sullivan, P. J., and Scanlan, J., concur.


text:
    People of the State of Illinois, etc. v. Roseland State Savings Bank. Fannie Shackter et al., Executors of Estate of Simon Cohen, Deceased, Appellants, v. Otto C. Woerter, Receiver of Roseland State Savings Bank, Appellee.
    Gen. No. 42,353.

      Opinion filed April 20, 1943.
    Rehearing denied May 4, 1943.
    Seymour N. Cohen, of Chicago, for appellants.
    Herbert G-. Immenhausen, of Chicago, for appellee ; Milton Smith, of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Simon Cohen filed an intervening petition in a proceeding pending in the circuit court for the liquidation of the Roseland State Savings Bank, asking that the amount of his indebtedness to the bank be ascertained, that certain securities held by the receiver be turned over to him, and for other relief. The receiver filed his answer and the matter was referred to a master . in chancery, who, pursuant to a full hearing, ascertained and found that petitioner was indebted to the receiver in the amount of $2,213.62, and recommended, inter alia, that upon payment of that sum the receiver deliver to petitioner the securities in question, and that he be enjoined from enforcing the payment of a judgment for some $8,000 entered in favor of the receiver and against petitioner in the municipal court. On hearing of exceptions to the master’s report, the chancellor by decree approved the report in all respects except the recommendation that petitioner was entitled to the securities. Petitioner died before the entry of the decree and his executors appeal from that portion of the decree which found that he had never acquired any right, title or interest in and to the collateral and that his executors were therefore not entitled thereto.

From the uncontroverted testimony taken by the master it appears that when the petition was filed Simon Cohen was 79 years old, blind and therefore unable to read. Some time prior to the closing of the bank Emil Seip and Walter C. Schmitt, directors and officials of the bank, requested him to call at the bank with respect to an account of his son Samuel, who they said was indebted to the bank upon two notes aggregating $19,000. They told him that the bank held as collateral security for these notes certain shares of stock theretofore deposited by the son, and because of the depreciation of the stock in value they requested him to act as surety on the notes for the son’s indebtedness. Cohen testified that the bank officials assured him the collateral would continue to be held as security for the two notes and that he signed them jointly with his son, because of 'these representations. Some months later when the notes matured and the indebtedness had been reduced by payments to $17,500, he was again called to the bank by the same officials and requested to act as surety for the balance of the debt. He was again assured that the stock was being held as collateral security for the indebtedness, and pursuant to these representations he signed the renewal note with his son in the principal amount of $17,500. It appears that at the time he assumed these obligations his son was indebted to the bank on notes in excess of $45,000 and that the stock in question had been deposited as collateral for one of those notes, but petitioner stated that he did not know nor was he advised of this fact. Shortly thereafter the bank was closed by the auditor of public accounts and a receiver was appointed. Petitioner then learned for the first time that his son was obligated to the bank on other notes, that the stock in question had not been deposited as-collateral for the note signed by him, but for another of his son’s notes, and that the representations made to him by the bank officials were untrue.

When the bank went into liquidation petitioner was indebted to it upon two individual notes in the principal aggregate amount of $3,024.21, in addition to the joint note for $17,500. He then paid to the receiver the total sum of $6,971.15, received the two notes representing his individual indebtedness to the bank, and the balance of the payment was directed to be applied on the joint note for $17,500.

negotiations for settlement resulted in a court order on July 29, 1932, wherein the receiver was directed to accept the amount of petitioner’s indebtedness, as fixed by the order, in monthly instalments of $600, with interest at 5 per cent per annum. Following the entry of that order petitioner made monthly payments of $600 which he directed to be applied upon the joint note signed by him and his son in the principal amount of $17,500. These payments continued for approximately one year, and then finding that because of his depreciated income he was unable to continue the payments, he made an agreement with the receiver, without court order, to pay $300 a month until the indebtedness of $17,500, with interest, had been liquidated.

Through miscalculation petitioner was under the impression that he had paid his indebtedness to the receiver in full, whereas in fact there remained a balance of some $900 with interest, and accordingly he stopped making the monthly payments under his agreement with the receiver. Some time thereafter the receiver had judgment in the municipal court by confession against petitioner and his son for $8,382.74, the amount which the receiver claimed was the unpaid balance of the $17,500 note. By appropriate proceedings petitioner had the judgment vacated as to him, and that proceeding is still pending. He then filed the petition here under consideration, asking that the amount of his individual indebtedness be ascertained, offering to pay any balance due, and asking that the collateral in question be turned over to him. The master found that petitioner was still indebted to the receiver in the sum of $910.06 in principal, and interest amounting to $1,303.56, or a total of $2,213.62, and he recommended that upon payment of this sum the collateral be delivered to him. After petitioner’s death his executors paid the receiver the amount found to be due, and took a receipt evidencing that payment.

The only controverted question is whether the court erred in withholding the collateral from the executors, after petitioner’s indebtedness had been satisfied in full. It is significant that petitioner’s testimony before the master was uncontradicted and unimpeached. Schmitt died before the hearing, but Seip was available as a witness; nevertheless, no effort was made to produce him or to impeach or contradict anything to which petitioner had testified. If Cohen’s testimony was true he was entitled to the collateral, since it is conceded to be the established rule, that upon payment of the principal debt by a surety, he is entitled in equity to be subrogated to the rights of the principal in any collateral deposited as security for the indebtedness. Lochenmeyer v. Fogarty, 112 Ill. 572; Lawrence v. Hammond, 208 Ill. App. 31; Robbins v. Slavin, 292 Ill. App. 479. But the chancellor, without assigning any reason, decided not to be guided by the testimony, nor by the recommendations of the master, and entered a decree contrary to the master’s recommendations. Counsel for the executors said on oral argument, without denial, that the entire time taken in hearing exceptions to the master’s report did not exceed 15 minutes, and that the chancellor reached his conclusions without reading or examining any part of the transcript of testimony, which consists of 140 pages, or manifesting any desire to do so. The receiver seeks to justify this course of procedure by contending that a master’s findings, although prima facie correct, are merely of an advisory nature and may be disregarded by the chancellor. We.have always understood it to be the rule that the master’s province in the first instance is to determine the facts, and that although his findings do not carry the same weight as the verdict of a jury, nor of a chancellor where the witnesses have testified before him, nevertheless they are entitled to due weight on review, and the cases so hold. Keuper v. Mette, 239 Ill. 586; Mruk v. Mruk, 379 Ill. 394. Of course the facts are found by the court as a basis for the decree, and it' is conceivable that the chancellor may disregard the testimony of a witness whose story is so unreasonable and improbable as to be unworthy of belief. However, such procedure presupposes that the chancellor has examined or is familiar with the transcript of the testimony, .and that there is other credible evidence upon which his findings may be predicated, but it cannot be invoked to disregard the uncontradicted testimony of a witness with which the chancellor is not familiar, as against the findings of a master who has heard all the testimony, who has had the advantage of seeing and hearing the witness and whose findings are predicated upon undisputed evidence. In Larson v. Glos, 235 Ill. 584, it was said that “a court or jury is not bound to believe a witness when, from all the other evidence or from the inherent improbability or contradictions in the testimony, the court or jury is satisfied of its falsity; (Podolski v. Stone, 186 Ill. 540); but a jury cannot willfully or from mere caprice disregard the testimony of an unimpeached witness. (Chicago and Alton Railroad Co. v. Gretzner, 46 Ill. 75.) Where the testimony of a witness is uncontradicted, either by positive testimony or by circumstances, either intrinsic or extrinsic, and the witness is not impeached, the testimony cannot be rejected even by a jury.” (Italics ours.) In the recent case of Mammina v. Homeland Ins. Co., 371 Ill. 555, the court said: “As there was no contradiction of appellant’s testimony either by testimony or circumstances, and it is not inherently improbable, the court could not, without committing error, reject it. Kelly v. Jones, 290 Ill. 375; Larson v. Glos, 235 id. 584.”

It is urged by the receiver, without any basis in fact, that “the testimony of a witness may contain within itself its own impeachment and he may be contradicted by what he states, as well as by adverse testimony,” and the suggestion is offered, but not argued, that the chancellor was justified in disregarding Cohen’s testimony as improbable. The circumstances under which he signed the note as surety for his son’s indebtedness, do not justify any such conclusion. His individual indebtedness to the bank was of minor consequence, and he paid that to the receiver shortly after the bank was placed in liquidation. His son was more than 40 years of age, and petitioner was not obligated to assume his debts to the bank. It was only through ties of blood and for sentimental reasons that he undertook to do so. It is reasonable to assume that if the bank officials had apprised him of his son’s total indebtedness, which exceeded $45,000, he would have hesitated to make himself personally liable for payment of so large a debt. Acóording to the undisputed testimony, his willingness to sign the note was induced by the withholding of important facts with respect to his son’s debts, and the representations of the bank officials that the collateral on deposit would continue to be held as security for payment of the $17,500 note. Petitioner manifested his integrity by paying his individual indebtedness, as well as the entire sum of $17,500 with interest, in accordance with his undertaking, These facts would not justify the court in. con-eluding that his testimony was unworthy of belief or that his story was improbable.

For the reasons indicated that portion of the decree from which the appeal is taken is reversed and the cause remanded with directions to enter a decree in accordance with-the findings and recommendations of the master.

That portion of the decree appealed from reversed and the cause remanded with directions.

Sullivan, P. J., and Scanlan, J., concur.


author: Mr. Justice Friehd

text:
    Newell Mecartney, Appellant, v. Louise Hale and John Clinkunbroomer, Appellees. Louise Hale and John Clinkunbroomer, Appellees, v. Newell Mecartney and John Kern, Appellants.
    Gen. No. 42,371.

      Opinion filed April 20, 1943.
    Rehearing denied May 4, 1943.
    Newell Mecarthey, pro se, and for appellant John Kern.
    John W. Corby, Jr., of Carthage, and George P. Novak, of Chicago, for appellees.
   Mr. Justice Friehd

delivered the opinion of the court.

Defendants Louise Hale and John Clinkunbroomer had judgment against Newell Meeartney, plaintiff, for possession of premises in Evanston, Illinois, before a justice of the peace, together with' costs of the proceedings, from which plaintiff appealed to the municipal court of Evanston. After a full hearing before Judge Harry H. Porter a like judgment was again rendered in favor of defendants. Plaintiff took an appeal to the 'Supreme Court of Illinois, filed his bond, which forms the basis of the counterclaim herein, but . because of his failure to comply with rule 36 of the Supreme Court with respect to filing of the record, the appeal was dismissed. Thereafter plaintiff lodged his complaint in chancery in the superior court September 15, 1939 to restrain the enforcement of the judgment of the municipal court of Evanston. He applied for a temporary restraining order, which was denied. Defendants interposed a counterclaim, predicated upon the bond which plaintiff had filed in connection with his appeal to the Supreme Court, to which answer was duly filed by plaintiff. June 16, 1941 plaintiff’s motion to strike defendants’ answer was denied, and defondants were permitted to amend their reply to include the defense of res adjudicata, and at the same time they were given leave to move for summary judgment under their counterclaim. Defendants having filed their amendment in pursuance of the order of June 16, the parties appeared before the chancellor June 30 for a hearing on defendants’ motion for summary judgment and also disposition of the complaint. A hearing was had on the pleadings and defendants’ supporting affidavit, following which the chancellor instructed counsel for defendants to draw the final judgment order. Such order was prepared by counsel and entered by the court on the second succeeding day, July 2, 1941. Subsequently plaintiff moved for leave to file a petition and motions for a stay of execution, for a new trial, and for arrest of judgment. These various motions were entered and continued by Judge O’Connell during vacation until the reconvening of court in fall. February 11, 1942 Judge Schwaba denied plaintiff’s petition and various motions, from which plaintiff has taken an appeal.

The principal ground urged for reversal is that the trial court had no jurisdiction to enter any judgment because of defendants’ failure properly, to serve notice of the order dismissing his complaint, and for summary judgment in favor of defendants under their counterclaim. A full hearing had been had before Judge Schwaba, at the close of which defendants’ counsel were directed to prepare .an order dismissing the complaint for want of equity, and for a judgment for defendants on their counterclaim. Plaintiff, who was present in court, was then advised by counsel that the order would be prepared later in the day and submitted to him for inspection. No objection was made to this procedure. The order was later prepared, and defendants’ counsel tried to contact plaintiff during that and the succeeding day by leaving telephone messages at his- office, to which no response was received. They say that they finally informed the person who answered plaintiff’s telephone that they would draft the order and ask the court to enter it the succeeding day. They also prepared a notice, which was mailed that evening to plaintiff’s office at Halsted street and North avenue, and inclosed a copy of the judgment order.

Plaintiff’s argument that the judgment order was void for want of jurisdiction is predicated on see. 1 of rule 16 of the superior court, which provides that “No motion will be heard or order made in any cause without notice to the opposite party,” and sec. 2 of rule 17, which prescribes that if such notice is forwarded by mail, “then the envelope enclosing a copy of the notice and copies of any supporting papers shall be deposited in the postoffice or postoffice box at least thirty-six hours before the motion is to be heard.” These rules have application to the notice required when a' hearing is to be had, but we do not think they apply to the circumstances of this case, where after full hearing the court indicated its ruling and instructed counsel for defendants to prepare the order. The judgment order conformed with the court’s announcement as to the disposition of the cause, and plaintiff knew that it would subsequently be entered. His office was notified as to the time the order would be presented, and he had a copy thereof. No further notice was required.

The judgment for possession in favor of defendants, the enforcement of which plaintiff sought to enjoin in this proceeding, became final upon the dismissal of his appeal to the Supreme Court through his own neglect. His remedy was to perfect the appeal, and since he failed to do so, the chancellor properly refused to enjoin the enforcement of the order upon plaintiff’s failure to exhaust his remedy at law. High on Injunctions, p. 148; Palmer v. Gardiner, 77 Ill. 143. The judgment sought to be restrained and the issues raised in his complaint were held by the chancellor to be res ad judicata by reason of plaintiff’s failure to perfect his appeal. Moreover, the judgment for possession has been fully executed. The lease under which plaintiff took possession of the premises in Evanston expired April 30, 1940. Plaintiff was thereafter evicted, and the question of his right to possession has become moot.

With respect to the counterclaim, defendants are entitled to judgment for $60.30 costs, and for rental of the premises from April 1, 1939 to September 30, 1939 at $45 a month, making a total of $330.30. The affidavit of Louise Hale, one of the defendants, in support of the summary judgment under the counterclaim, is in compliance with the statute, and we perceive no reason why defendants should not be entitled to recover the amount awarded them.

The order of the superior court, entered February 11, 1942, and the rulings on plaintiff’s various motions are therefore affirmed.

Order affirmed,

Sullivan, P. J., and Scanlan, J., concur.


text:
    Mary Gulich and Earl L. Schoening, Coadministrators of Estate of Mary Gulich, Deceased, Appellants, v. Archer G. Ewing, Appellee.
    Gen. No. 42,408.

      Opinion filed April 20, 1943.
    A. B. Manion, of Chicago, for appellants.
    Burt A. Crowe, of Chicago, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

Plaintiffs sued under the Injuries Act to recover damages for the wrongful death of Mary Gulieh, who was struck by an automobile driven by defendant while she was crossing Stony Island avenue at 93rd street, Chicago, Illinois.

Deceased was 19 years of age and at the time of the accident was employed as a night waitress in a restaurant at 57th street and Stony Island avenue. It had been her custom each morning, between 3:00 and 3:30, to board a street ear at 57th street, ride to 93rd street and Stony Island avenue, and there transfer to a westbound street car, to reach her home at 110 East 93rd street. She was struck on the morning of April 15,1939, between 3:00 and 4:00 a. m., by an automobile being driven north on Stony Island avenue by defendant. There were no eyewitnesses to the accident, and defendant did not introduce any-evidence at the trial. The jury returned a verdict of not guilty, upon which the court entered judgment, and from which plaintiffs have taken an appeal.

The principal ground urged for reversal is that the court erred in instructing the jury, and it is argued that the prejudicial nature of the instructions requires a reversal. At the request of defendant the court gave seventeen instructions, nine of which concluded with either the phrase, “to find the defendant not guilty,” “your verdict should be not guilty,” or words of similar import. Seven of these instructions related to the degree of care required of plaintiffs’ intestate. Defendant says that “By reason of the complete lack of evidence as to the actions or conduct of the defendant, and since the only evidence as to what the plaintiffs’ intestate did was only that she got off the standing street car in the dark and made a run for a westbound 93rd Street car, it became necessary and proper for the Trial Court to thoroughly and completely instruct the jury as to the law,” and his counsel argues that the instructions were justified by reason of the fact that each one laid down a well-founded proposition of law and that there was no repetition or duplication.

The courts of this State have repeatedly condemned the practice of needlessly concluding numerous instructions with phrases of the character here indicated. The vice of such a charge lies in the fact that it is “calculated to impress the jury with the thought that the court was against the plaintiff on the question of fact and that they might readily be misled to believe that in the opinion of the court they should find for the defendant.” Nelson v. Chicago City Ry. Co., 163 Ill. App. 98. This would be particularly true in a case ■ where no evidence is adduced by the defendant, for then the jury might be even more likely to believe that the court entertained doubt as to whether a prima facie case had been made by plaintiff and was indicating its opinion as to how the jury ought to find the issues of fact. In the Nelson case direction was given to the jury in each of six instructions to -find the defendant not guilty. The court criticized this practice by saying: ‘1 This is only another way of emphasizing the words ‘not guilty’ and is as effective, if not more so, as printing the words in large type — a practice condemned in Elwood v. Chicago City Ry., 90 Ill. App. 397, 400.” In Wood v. Illinois Cent. R. Co., 185 Ill. App. 180, it was pointed out that “Of the fifteen instructions offered by the defendant and given, six concluded that a verdict of ‘not guilty’ should be returned, and in the fifteen instructions certain principles of law favorable to the defendant were by many frequent repetitions unduly emphasized and brought too prominently to the attention of the jury.” The court there reached the conclusion that the giving of these instructions required a reversal, and remanded the case for retrial. Similarly in Cohen v. Weinstein, 231 Ill. App. 84, where of the twenty-one instructions given at defendant’s request, thirteen closed with the words “then you should find the defendant not guilty” or words to that effect, the court disapproved of the practice, and reversed and remanded the cause. Daubach v. Drake Hotel Co., 243 Ill. App. 298; Williams v. Stearns, 256 Ill. App. 425; and the more recent Appellate Court cases of City of Lake Forest v. Janowitz, 295 Ill. App. 289, and Pillow v. Long, 299 Ill. App. 542, are to the same effect. It is undoubtedly misleading to the jury and prejudicial to plaintiff’s cause to constantly and needlessly repeat the charge “then you should find the defendant not guilty, ’ ’ or words of similar import; nor is it necessary for the enlightenment of the jury to give numerous instructions with respect to the degree of care required by plaintiff, even though that be one of the principal issues in the case, as numerous instructions are very likely to be misleading and prejudicial to the rights of such litigant.

The only other ground urged for reversal is that the verdict was contrary to the manifest weight of the evidence. Inasmuch as the cause will, in all likelihood, be retried, we consider it unnecessary and inadvisable to discuss the evidence adduced by plaintiffs.

Holding, as we do, that the instructions given at the request of defendant were repetitious, prejudicial and therefore erroneous, the judgment of the circuit court is reversed and the cause is remanded for retrial under proper instructions.

Judgment reversed and cause remanded for retrial.

Sullivan, P. J., and Scanlan, J., concur.