text:
    Illinois Central Railroad Co. v. H. J. Jones, Adm'r, etc.
    1. Fellow-Servants — Switch Crews Who Are Not. — Switch crews belonging to different trains of the same railroad company, where the evidence fails to show the existence of that habitual association which may exercise a mutual influence promotive of proper caution among servants of a common master, can not be regarded as fellow-servants within the meaning of the term.

      2. Same — When a Question of Fact and When of Law. — Whether or not, under given circumstances, different servants of a common master are fellow-servants within the legal signification of the term, is a question of fact for the determination of a jury, except where, upon conceded facts or conclusive or uncontradicted evidence, the court can say that all reasonably intelligent minds must arrive at the same conclusion, when the question becomes one of law. But if different minds may honestly draw different conclusions from the proved facts and legitimate inferences to be drawn from them, the case is tó be submitted to the jury for their determination as a question of fact.
    8. Instructions — Duty of the Court as to the Law of Fellow-Servants. —It is the duty of the court to define, and instruct the jury as to what, in law, constitutes the relationship of fellow-servants; but whether the circumstances of a given case fall within such rules of law is a question of fact, unless where the proved or conceded facts are so clear as to make the question one of law only.
    4. Ordinary Care — No Recovery Without. — Where a person injured by a railroad is not, at the time, in the exercise of due care and caution, he is, in the eye of the law, guilty of negligence, and if that negligence contributed to his injury he can not recover.
    Trespass on the Case. — Death from negligent act. Appeal from the Circuit Court of Madison County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the August term, 1900.
    Reversed and remanded.
    Opinion filed September 4, 1901.
    William H. Green, attorney for appellant; J. M. Dickinson, of counsel.
    W. F. Bundy and Frank F. JSToleman, attorneys for appellee.
   Opinion per Curiam.

In this case a petition for rehearing has been duly presented. We have given the petition attention, considered the suggestions therein made, adhere to the conclusion that the case should be reversed and remanded, and therefore deny the prayer of the petition; but we modify the opinion, which, as modified, is as follows:

Appellee commenced this action to recover damages for causing the death of his intestate, John F. J ones, by the claimed negligence of appellant.

Deceased, John F. Jones, was in the employ of appellant as brakeman on a freight train; his run was from Centraba through Carbondale to Carterville and return. He had been in the service of appellant for two years prior to the time of the accident. At the same time appellant had another freight train which ran from East St. Louis through Carbondale to Mounds and return.

At Carbondale there is a switchyard, and it was in this yard that Jones was killed. Appellant’s road through Carbondale is double tracked, the west track being as a rule used by south bound trains and the east track by north bound trains. At Carbondale two branches turn off the main line; one runs east and south to Carterville; the other runs west and north to East St. Louis; Mounds is south of Carbondale on the main line. The only point where these two trains could meet was at Carbondale, and this would happen sometimes twice or three times a week, and at other times not for an entire week. The meetings were not at all regular, but apparently were accidental. The crews of the two freight trains did switching in the yards at Carbondale, setting out cars in the yard, and taking cars from the yard. To what extent these crews actually co-operated in the discharge of their duties, the evidence is uncertain, though it tends to prove that each crew did its own work without co-operation of the other.

On March 16, 1899, the Oarterville crew arrived in the Carbondale switchyard at 11 o’clock p. m. They left their train on the “ T ” which connects the Oarterville branch with the main line; cutting off the engine and heading north, they took the main west track and started backing slowly toward the depot, which was located a considerable distance to the south, on the main track. The entire crew of the Oarterville run, consisting of engineer, fireman, conductor and two brakemen (of whom Jones was one) were riding on the engine. The purpose of running down on the west main track was to get some way-bills at the freight house (where located the evidence fails to show) and to pick up some freight cars. The engineer was riding on the east side of the cab and deceased was riding on the west side.

While in the act of backing down, the engineer noticed another engine to the east of him, also heading north, but standing still. The evidence leaves it uncertain whether deceased knew this engine was in the yards.

The Oarterville crew kept backing south very slowly, until they reached a point 1,500 feet north of the depot, where they came to a standstill. Just before the engine stopped the conductor of the Oarterville train jumped from the engine and started east across the east main track to look up the freight cars that he was after and which he supposed were standing on the switch tracks east of the main tracks. Deceased, though not requested by the conductor, also jumped from the engine and followed him. He jumped from the deck of the engine without using the step in his descent, and at once started toward the east main track. As soon as he reached the east main track, he was knocked down and killed by the other engine with four box cars attached. This engine had started up and was at the same time backing south on the east main track, running at a speed variously estimated at from six to fifteen miles an hour, overtaking the slower Carterville train, so that just prior to the accident both trains were backing south on the east and west main tracks respectively. The point where Jones was killed, was just east of where the Carterville engine came to a standstill, about 1,500 feet north of the depot, and about 500 feet north of the nearest north street crossing of the city of Carbondale.

The evidence warrants a finding that the switchyard at the point of the accident is within the corporate limits of the city; there is an ordinance in force in that city, limiting the speed of freight trains to six miles per hour. The train which committed the injury was in charge of the East St. Louis crew, and their testimony shows that the “ back up” signal was given twice before the accident, each signal consisting of three sharp sounds of the whistle. In addition, two brakemen, with lanterns in their hands, were stationed on the south end of the backing train. The engineer on the Carterville engine seems not to have been aware of the immediate presence of the East St. Louis train until the end of the backing cars appeared within the range of the headlight of his engine. There are two counts in the declaration; the first count alleges negligence in the management of the train which caused the death of deceased in that it was propelled backward at a high and dangerous rate of speed; and the second alleges the negligence to have been that the defendant ran its train at a greater rate of speed than was permitted by the ordinance of the city of Carbondale. The trial resulted in a verdict for appellee in the sum of $3,000. At the close of plaintiff’s evidence in chief, appellant moved the court to instruct the jury to find for the defendant, which was overruled, and the motion was renewed at the close of all the evidence, when it was again overruled by the court and proper exceptions were taken. The court rendered judgment on the verdict, after having overruled appellant’s motion for a new trial.

The principal grounds urged for reversal of the judgment are, that the crews of the two trains were fellow-servants; that the court erred in giving certain instructions on behalf of appellee; that deceased was himself guilty of negligence which contributed to the injury which caused his death, and the refusal of the Circuit Court to grant a new trial.

Were deceased and the members of the crew which controlled the East St. Louis train fellow-servants ?

Each crew seemed to have been engaged in its own particular duties in the running of the respective trains. The evidence fails to show the existence of that “ habitual association which may exercise a mutual influence promotive of proper caution ” among servants of a common master.

Mr. Justice Shepard, in Chicago City Ry. Co. v. Leach, 80 Ill. App. 363, says:

“ But whether or not, under given circumstances, different servants of a common master are fellow-servants, within the legal signification of that term, is well settled in Illinois to be a question of fact for the jury, except where, upon conceded facts or conclusive or uncontradicted evidence, the court may say that all reasonably intelligent minds must arrive at the same conclusion, when in such cases the question would become one of law. If different minds may honestly draw different conclusions from the proved facts and legitimate inferences to be drawn therefrom, a case exists for the jury to act upon.

It is the duty of the court to define and instruct the jury as to what, in law, constitutes the relationship of fel'low’"servants, but whether the circumstances of a given case fall within the rule of law so laid down is a question of fact for the jury, unless where, as above said, the proved or conceded facts are so clear as to make the question one of law only.”

This seems to be an accurate statement of the law in relation to the question of fellow-servants; the Supreme Court has often enunciated the same rule in reference to the same matter. Deceased was certainly not co-operating with the East St. Louis crew • in any particular business which they then had in hand, so as to bring him within the first branch of the fellow-servant rule, and we have already stated that there is no evidence in the record of such decisive character as to bring him. under the second branch of the same rule.

The only instruction given on behalf of appellee, except one in the usual form as to the measure of damages, was as follows:

“ The court instructs the jury that if you believe from the evidence in this case that railroad companies were by an ordinance of the city of Carbondale, at the time of the injury in question, prohibited from running or propelling any freight train or cars within the corporate limits of said city at a greater rate of speed than six miles per hour; and if you further believe from the evidence that John F. Jones, the deceased, on the night in question was in the employ of the defendant asa bralceman; that he, the said Jones, while in the discharge of his duties as brakeman, and in the line of his employment, attempted to cross over one of defendant's tracks, within the corporate limits of the said city of Carbondale, and that he was using due care and caution for his own personal safety immediately before and while attempting to cross over said tracks; and if you further believe from the evidence that the said John F. Jones and Engineer Dunn were not fellow-servants; and if you believe from the evidence that the said defendant carelessly and negligently ran and propelled certain freight cars attached to a locomotive engine along and upon said track at a high and dangerous rate of speed, and in excess of six miles an hour, whereby the said John F. Jones, while attempting to cross said track, was suddenly and violently struck by one of said cars and knocked down, run over and killed, as charged in the plaintiffs declaration; then you should find the defendant guilty.”

When this instruction is considered in the light of the issues made by the pleadings and of the evidence, we think it does not contain error prejudicial to appellant.

The more serious and perplexing question in this case is as to the care and diligence exercised by deceased for his own safety. The law upon that question, as applicable to facts such as appear in the case at bar, is quite fully laid down in I. C. R. R. Co. v. Batson, 81 Ill. App. 142, in which we say:

“ Two basic propositions are asserted by the declaration and denied by the pleas. First, that the deceased, at the time of the accident, ‘ was in the exercise of due care and caution for his own safety; second, that the defendant was guilty of negligence causing the death of the deceased. As wanton negligence is not charged, and as the doctrine of comparative negligence is not now applied in this State, if the first proposition is not sustained by the evidence, the second proposition need not be considered.

If deceased was not in the exercise of due care and caution, he wras, in the eye of the law, guilty of negligence; and if that negligence contributed to his death, appellee can not recover in this action. Lake Shore & M. S. R. R. Co. v. Hessions, 150 Ill. 546.

‘To entitle plaintiff to recover in this kind of an action, he must have been in the exercise of ordinary care at the time of receiving the injury. He could not be in the exercise of ordinary care and at the same time guilty of negligence that contributed to the accident. The injury must be attributed to the defendant’s negligence and to that alone.’ C. & A. R. R. Co. v. Kelly, 75 Ill. App. 493; Chicago City Ry. Co. v. Fennimore, 78 Ill. App. 479.

It devolved upon appellee to prove by a preponderance of the evidence that at the time of, and immediately preceding the accident, the deceased was in the exercise of ordinary care. C., B. & Q. R. R. Co. v. Gregory, 58 Ill. 272; C., B. & Q. R. R. Co. v. Warner, 108 Ill. 553; North C. St. Ry. Co. v. Louis, 138 Ill. 11; I. C. R. R. Co. v. Nowicki, 148 Ill. 29.

It is said in West Chicago St. Ry. Co. v. Manning, 170 Ill. 427:

‘ What is ordinary care depends upon the circumstances of the particular instance. When the circumstances are such that an ordinarily careful and prudent person would deem it essential to exercise a greater degree of care and caution than upon less threatening circumstances, such greater degree of care would be ordinary care.’

One must act under all circumstances as a reasonably prudent person would act, which is denominated reasonable or ordinary care. C. W. & V. Coal Co. v. Peterson, 39 Ill. App. 118.

Keeping in mind these propositions of law, does the evidence show that the deceased exercised ordinary care ? This is not a case where no witnesses saw the accident, and where the circumstances and actions of the deceased are unknown. If it was, proof of his character as a cautious and prudent man would be admissible and might warrant the presumption that he acted with due care and caution. But if there were witnesses who saw the accident and who testify to the actions of the deceased at the time, and to the circumstances and environment preceding it, such proof would not be admissible. I. C. R. R. Co. v. Ashline, 171 Ill. 312; C., R. I. & P. R. R. Co. v. Clark, 108 Ill. 117.

It follows, then, that we must look to the evidence in the case, as given by those who saw the accident and are familiar with all the conditions, to see if it affirmatively appears that the deceased was in the exercise of ordinary care.”

While the law is, if there is any substantial evidence, or reasonable inference deducible from the evidence, tending to support all the issues necessary to a recovery, the trial court should submit the case to a jury, yet the law also is, where the verdict is palpably against the weight of the evidence it should be set aside. In Belden v. Innis, 84 Ill. 78, the court says:

“ It is the duty of every judge of the Circuit Court to give careful attention to every part of the testimony in each case and to consider it with as much care as if the case were tried by the court without a jury. And in all cases where the verdict is manifestly and palpably against the weight of the evidence, the judge of the Circuit Court should promptly take the responsibility of setting aside the verdict.”

In St. Paul F. & M. Ins. Co. v. Johnson, 77 Ill. 598, the court says:

“We are of opinion the verdict was clearly against the weight of evidence and should be set aside on that ground. The judgment will be reversed and the cause remanded.”

Where a verdict is palpably against the weight of the evidence and the trial judge refuses to set it aside, such is error, and it is the duty of the Appellate or Supreme Court, as the case may be, to reverse and remand for such error. C., R. I. & P. R. R. Co. v. Herring, 57 Ill. 59; Wade v. Atkins et al., 58 Ill. 64; Peaslee v. Glass, 61 Ill. 94; Lincoln v. Stowell, 62 Ill. 84; Davenport et al. v. Springer et al., 63 Ill. 276; C., B. & Q. R. R. Co. v. Stumps, 69 Ill. 409.

While we do not agree with counsel for appellant that there is absolutely no evidence tending to establish the necessary averment in appellee’s declaration, that deceased was, at the time and on the occasion of the injury complained of, in the exercise of due care and caution for his own safety, still, considering the evidence in this case in the light of the law as we understand it and have heretofore laid it down in I. C. R. R. Co. v. Batson, herein quoted from, the case, to our minds, clearly falls within the class of cases above cited and under the rule therein laid down and adhered to.

The Circuit Court should have granted a new trial, and for this error the case is reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Worthington

license: Public Domain

text:
    Philip Wolf and Emma Wolf v. George W. Booker.
    1. Statute of Frauds — Defense of, to he Pleaded Specially. — A contract subject to the statute of frauds is voidable only, and not void ipso facto; it can be enforced as made if the opposite party does not take advantage of the statute.
    2. Same — Defense of the Statute Can Not he Made on a General Demurrer. — The defense of the statute of frauds can not be made by a general demurrer. A general demurrer does not present this defense, even when it appears on the face of the declaration that the contract sued upon is voidable. The statute must, in some way, be specially pleaded.
    3. Same — Form of the Remedy Where Suit is Brought for the Reeovery of Goods Delivered Under an Invalid Contract for the Sale of Land. —Where a suit is brought for the recovery of the value of goods delivered in payment of real estate under an oral contract voidable by the statute of frauds and which the purchaser refuses to perform, the form of the remedy is trover, detinue or replevin.
    Assumpsit, for goods sold and delivered. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the February term, 1901.
    Reversed.
    Opinion filed September 4, 1901.
    Kramer, Creightor & Shaeffer and B. H. Canby, attorneys for appellants.
    Messiok, Moyers & Crow, attorneys for appellee.
   Mr. Justice Worthington

delivered the opinion of the court.

This ease was decided at the February term, 1900, of this court. A petition for rehearing having been granted, and the case reconsidered, the original conclusion of the court is adhered to, but the opinion is somewhat modified, and as modified is filed as follows:

This case is before this court upon a demurrer to the first amended additional count of the declaration, all other counts being dismissed. The court overruled the demurrer and appellant abided by his demurrer. The court, after hearing evidence as to the value of the property, rendered judgment for appellee for $1,300.

The count in substance is as follows:

George W. Booker, the plaintiff, complains of Philip Wolf and Emma Wolf, defendants, that on the 1st day of July, A. D. 1899, the plaintiff owned a certain stock of groceries, goods, wares, etc.; that plaintiff then and there sold to the defendants and the defendants purchased of the plaintiffs the said stock of groceries, goods, wares, etc.; that as the consideration for the said sale of the said goods, etc., to the defendants, they, the said defendants, agreed orally, to and with the plaintiff, to pay therefor the sum of $1,300, to wit: to convey to the plaintiff one lot of ground situated in the city of East St. Louis, Illinois, of the value of $1,200, and the further sum of $100 in cash; that the plaintiff, in consideration of the undertaking on the part of the defendants as aforesaid, delivered to the defendants the said stock of goods, etc., and said defendants accepted the said goods, etc., and went into the possession thereof, and still remain in the possession thereof. Plaintiff avers that after the defendants had gone into possession of said stock of goods, etc., they refused to convey to the plaintiff the said lot of ground or to pay to the plaintiff the said sum of $100 as aforesaid. And the plaintiff avers that afterward, on, to wit, the 3d day of July, A. D. 1899, he, the plaintiff, demanded of the defendants that they convey said real estate to the plaintiff and pay him the said sum of $100, and that the defendant refused to convey to the plaintiffs the said real estate or to pay the said sum of $100 as they had agree to do. The plaintiff avers that the said defendants then and there thereby became liable to pay to the plaintiff so much as the stock of goods, etc., were reasonably worth at the time they were delivered to the said defendants, and that being so liable the said defendants in consideration thereof undertook and promised to pay to the plaintiff, on request, so much as said stock of goods, etc., were reasonably worth; and the plaintiff avers that all of the said personal property was then and there reasonably worth the sum of $1,300. Tet the defendants, though often thereto requested, have not paid the plaintiff the said sum of $1,300 or any part thereof, but refused so to do, to the damage of the plaintiff of $1,500, and therefore he brings this suit.

It will be noted that the a,ppellee does not seek to recover the value of the lot and $100, but does seek to recover the value of the goods, etc., delivered by them to appellants. In other words, appellee, by his declaration, does not seek to enforce the contract as made. This is declared by counsel for appellee in their argument, in which they say, “ We are not seeking to enforce a contract within the statute of frauds, nor any portion of such contract, nor to recover damages for its non-performance,” etc. And again in their petition for rehearing they say, “ We have always, and now, recognized that we can not enforce the contract to convey the lot, either in law or in equity.” This is upon the doctrine that a verbal contract within the statute of frauds can not be enforced, either directly or indirectly, and can not be made either the ground of a demand or a defense. McGinnis v. Fernandez, 135 Ill. 69; Leach v. Ritzke, 86 Ill. App. 483.

This proposition is subject, however, to limitation. A contract subject to the statute of frauds is only voidable, and not ipso facto void. Appellee could have enforced the contract as made, if appellants did not take advantage of the statute. Testing this case by the pleadings of appel lants, they have not availed themselves of the defense of the statute. Their demurrer is a general demurrer, and such a demurrer does not present this defense, although it appears from the declaration that the contract is voidable. The statute must in some way be specially pleaded. Kinzie v. Penrose, 2 Scam. 520; Dyer v. Martin, 4 Scam. 151; Tarleton v. Vietes, 1 Gilman, 473; School Trustees v. Wright, 12 Ill. 432; Chi. Coal Co. v. Liddell, 69 Ill. 640.

The contract being only voidable, and not void, appellee could have enforced it, for anything that appears in appellants’ pleadings. Dyer v. Martin, supra; Collins et al. v. Thayer, 74 Ill. 140.

But appellee had the same legal right to avoid the contract as had appellants. He could, if he so desired, recover in a proper form of action from appellants the property he had delivered to them. Or, if they, refusing to carry out the original contract, had sold the property received from appellee, or had so converted it to their use as to destroy its identity, he could waive the tort and recover, in assumpsit, what they received for it if sold, or what it was reasonably worth if its identity had been destroyed. But in such case, a demand for the return of the property delivered and a refusal would have to be averred and proved. This condition precedent does not appear in appellee’s declaration. It avers a demand for the conveyance of the lot and the $100, but does not aver any demand and refusal for the property delivered to appellants, or that it was sold by them or its identity destroyed.

The declaration stating an express contract and the refusal of appellants to comply with it, avers a liability upon an implied contract arising out of such refusal. Until appellants had, in some appropriate way, avoided the express contract which they had made, and which by their demurrer they admit, and which could be enforced against them if. not by them avoided* they could not be held liable upon an implied contract.

A contract can not be implied when an express contract exists.

“ An express and an implied contract can not co-exist.” Reed on Statute of Frauds, Sec. 495; Chas. P. Kellogg & Co. v. James H. Turpie, 93 Ill. 265.

Jennings v. Camp, 13 Johnson, 94, quotes with approval as follows:

“ What Lord Kenyon said in Cutler v. Powell, 6 Term Rep. 320, that when the parties have come to an express contract, none can be implied, has prevailed so long as to be reduced to an axiom of law.”

In Galvin v. Prentice, 45 N. Y. 162, it is said :

“ The express promise appearing upon the plaintiff’s own showing, although it can not be enforced by reason of the statute, excludes an implied promise.”

If these authorities state the law, it is clear that appellee can not recover upon an implied contract, when he has set out an express one, which appellants have not sought to avoid by invoking the statute, but are in default in performance only.

Appellants’ demurrer is then to be treated as saying, “ We admit the original contract as stated in the declaration and do not seek to avoid it as invalid under the statute of frauds, and therefore say that the plaintiffs can not recover in assumpsit upon an implied contract under the allegations of their declaration, for the value of the goods and chattels they have delivered to us.” In other words, they say by their demurrer, “ If we do not seek to avoid the original contract, and plaintiff does not seek to enforce it, he must allege such conditions as make us guilty of a tort, before we are liable in assumpsit, if he sees fit to waive the tort and sue in assumpsit.”

It is settled by numerous decisions in this State that a tort may be waived, and suit brought in assumpsit, but in such cases the tort must first exist. The reception of the goods delivered by appellee to appellants and the failure of appellants to convey the lot and the hundred dollars, did not of itself amount to a tort. The refusal to re-convey the property delivered when demanded would have constituted a tort, for which replevin or trover would have been the appropriate action, unless the property had been sold or its identity destroyed by appellants, when assumpsit could have been maintained.

This seems to- have been the doctrine laid down in Updike v. Armstrong, 4 Ill. 564, the earliest case upon this point. This was a suit in assumpsit to recover for goods, wares, etc., delivered in part payment of afarm under an oral contract. In referring to an instruction the court say:

“Even admitting the plaintiff could recover without a refusal on the part of the defendant to perform, or some other act including an intention on the part of the defendants to disavow, disaffirm or repudiate the parol agreement, still he could not recover the value of the property in this form of action. He should have resorted to his action of replevin, or trover and conversion.”

Johnson v. Deverill et al., 61 Ill. 317, is in line with this early decision. In this case the contract was in writing and under seal, and the defendant refused to convey a lot for the consideration of ahorse and buggyhe had received. The plaintiff could have enforced the original contract but he sought to recover the value of the horse and buggy. This could only be upon an implied contract to pay for the horse and buggy-arising from a failure to convey the lot. The court "say, “ the sale of the horse, buggy and harness, or their conversion in some way, would be the only ground upon which assumpsit would lie.” So in the case at bar the sale of the property received by appellants or its conversion in some way is the only ground upon which assumpsit would lie to recover its value. "Where money has been paid it may be recovered in assumpsit. In Eeed on the Statute of Frauds, Sec. 627, the rule is stated as follows :

“The suit "for money paid is assumpsit; for money had and received, for chattels delivered, the remedy is trover or detinue, and for labor a quantum meruit.” “ When the recovery of a chattel delivered under an invalid sale of land, the remedy is not assumpsit, but trover, detinue or replevin.” Citing Shreve v. Grimes, 4 Litt. 223; Keath v. Patton, 2 Stew. 38; Duncan v. Baird, 8 Dana 101; Atwood v. Fox, 30 Mo. 499; Updike v. Armstrong, 4 Ill. 565.

Many cases may be cited where a recovery upon a quan turn meruit was had for services rendered under a contract voidable by reason of the statute of frauds. This is for the reason that the services had been rendered and could not be returned. The parties can not be placed in statu quo. It is for the same reason that assumpsit will' lie when the chattels have been sold or their identity destroyed. .

Counsel cite decisions in other States .to the effect that assumpsit will lie under the facts alleged in the declaration in the case at bar. But we prefer to follow the decisions of our own courts as we understand them, and the correct principles of pleadings as they appear to us.

Counsel for appellee in their petition ask as follows:

“ If, on a rehearing and reconsideration of said judgment, this honorable court shall still be of the opinion that said judgment of the citjr court should be reversed, * * then appellee petitions this honorable court to so far reconsider its former judgment as to so modify the said judgment of reversal that appellee may appeal directly to the Supreme Court of Illinois from the judgment of the Appellate Court, the said appellee hereby electing to abide by his declaration.”

In accordance with the request of appellee the former judgment of this court is so modified as to reverse without remanding the case of the City Court of East St. Louis, and rendering judgment for costs in favor of appellants and against appellee. Reversed.


text:
    Charles Degenhart, Impleaded, etc., v. Charles Gent, Adm’r, etc.
    1. Instructions — Based upon the Allegations of the Declaration.— In an action for damages resulting from the death of a person from negligence, when a general demurrer to the declaration is overruled and the defendant pleads over, it is not error to instruct the jury, if they believe from the evidence that the deceased, while in the exercise of ordinary care, lost his life through the negligence of the defendant as charged in the declaration, the plaintiff is entitled to recover.
    2. Expert Witnesses — IVho Are Competent as Smc/i. — Persons who have experience in excavating the earth and in protecting themselves against its caving, may have such a peculiar knowledge of the character of soils and of the best methods of protection, not acquired by common experience and observation, as will render them competent as expert witnesses.
    3. Master and Servant — When a Safer Mode of Doing the Business Might Have Been Adopted. — If a servant, knowing the hazards of his employment, as the business is conducted, is injured while engaged therein, he can not maintain an action against the master for the injury merely on the ground that there was a safer mode in which the business might have been conducted, the adoption of which would have prevented the injury.
    Trespass on the Case. — Death from negligence. Appeal from the City Court of Alton; the Hon. Silas Cook, Judge,.presiding. Heard in this court at the February term, 1901.
    Reversed and remanded.
    Opinion filed September 4, 1901.
    Statement. — Appellee, administrator of the estate of Harry Lovell, deceased, commenced this action against the appellant, Charles Degenhart, and the City of Alton, to recover $5,000 for the alleged negligence of the defendants, whereby Harry Lovell was killed. At the close of plaintiff’s evidence he dismissed as to the city of Alton.
    Appellant, Degenhart, had contracted with the city of Alton to construct a sewer in one of its streets. The deceased and others were employed by Degenhart in digging the sewer. The negligence charged is for failure to protect the sides of the sewer by bracing or planking so as to prevent the earth from caving in.
    Four men were working together at the same place, the deceased and two others at the bottom of the sewer, which was about twelve feet deep, digging and throwing the dirt on a platform, from which the fourth man threw it to the surface. Two were killed and the other two injured. Verdict and judgment for appellee for $1,500, from which Degenhart appeals.
    John F. McGinnis and Dunnegan & Levekett, attorneys for appellant.
    John J. Brenholt, attorney for appellee.
   Mr. Justice Worthington

delivered the opinion of the court.

Counsel for appellant claim, error in allowing witnesses for appellee to testify as experts, upon the ground that the matter about which they testified was “within the range of common experience and observation.” The claim is not well founded. Persons having experience in excavating, and in protecting against the caving in of earth, may have peculiar knowledge of the character of soils, and of the best methods of protection, that is not acquired by common experience and observation. Objection is made to the italicized part of the first instruction given for appellee, which is as follows:

“ If you believe from the evidence that Harry Lovell, while in the exercise of ordinary care for his safety and without fault or negligence on his part, lost his life by and through the negligence of defendant as charged in the declarationf etc.

The criticism is, that the court, invaded the province of the jury by telling them in this instruction, that what was charged in the declaration constituted negligence. It was for the court to say whether the declaration charged negligence, and for the jury to say if the negligence charged was proved.

Appellant filed a general demurrer to the declaration, which was overruled, and the general issue was then pleaded. The demurrer admitted all allegations well pleaded. In overruling the demurrer the court must have held that the declaration charged negligence on the part of appellant. If appellant insisted that the facts alleged in the declaration did not constitute negligence, he should have abided by Ms demurrer. It was no error then to instruct the jury that if they believed from the evidence that the deceased, while in the exercise of ordinary care, lost his life through the negligence of the defendant as charged in the declaration, that appellee was entitled to recover, etc.

It is also urged that as the city engineer had supervision of the construction of the sewer, “ it can scarcely be said that the defendant, Degenhart, would be responsible for an accident to the man, for the reason that he bad not that control which would cast'that responsibility upon him.”

There is no evidence to show that the supervision by the engineer was more than to see that the sewer was properly constructed under the contract. Such "supervision would not relieve defendant from responsibility in the construction of the sewer.

The most important question in the case is one of fact, namely, did Harry Lovell, the deceased, assume the risk of excavating without the sides.of the sewer being braced and protected ?

There is evidence tending to show that the deceased had experience in similar work, and that both his co-laborers and appellant depended upon his judgment as to whether protection by planking the sides of the excavation was necessary. The testimony of two'of the witnesses, Lewallen and Manley, who were working with the deceased at the time of his death, was given by depositions. The accident occurred about half past one p. m. Lewallen testifies :

“We were sitting by a tool house, about fifteen minutes before one. Degenhart said, ‘Well, Harry, what do you think about the ditch % ’ I says, 11 can not see anything wrong with the ditch,’ and then he says to Harry, ‘ I have about a load or a load and a half of lumber, and if there is any danger we will get that and brace it;’ and Harry says, 1 There is not any danger that I can see.’ Then Degenhart told us to go to work. Directly after we went to work, Degenhart came to the ditch, and asked Harry if he thought the ditch was safe, and Harry spoke up and said it was perfectly safe. Degenhart said, ‘ I do not want any more men hurt by cave-ins; if there is any danger, Harry, get out;’ and Harry said, 1 It is all right.’ I told him (Harry Lovell) I had never had any experience in this work, and I did not know whether I could do it, and he says, ‘ I have had seven years in tunneling, and you can do" it as well as I can.’ I was depending upon the judgment of Harry, Lovell and his experience.”

Manley, who was working in the ditch with the deceased, substantially corroborates Lewallen’s evidence. He testifies that about eleven o’clock he heard Degenhart ask Lovell if the bank was safe and that he answered that it was; that the next time he heard him speak to Lovell was about one o’clock; that he asked him if the ditch was safe, and said if he (Harry) thought it was not, he had some lumber and would brace it; that Harry told him the ditch was all right. Degenhart told us if the ditch was not safe, to get out;, but Lovell said it was all right, and went to putting in a scaffold. I asked him if he thought it was safe, and he said, ‘ Yes, it is all right.’ I really did not think there was any danger, and supposed Hr. Lovell knew, and Hr. Degenhart put a great deal of dependence in him.”

Chadwick, also a laborer in the ditch, testifies that he heard Degenhart say to Harry if the ditch was not safe to get out, and that Harry replied, “ Oh hell! this is all right; ” that when Degenhart said. this, Harry hit the bank with a bar or shovel, and said, This is all right.” Choussee testifies that he was throwing the dirt back from the edge of the ditch, as it was thrown up from the platform; that he heard Degenhart tell the men to be careful, and that he heard one man in the ditch tell him there was no danger there.

Appellant testifies that the ground was hard, and the men had to use picks; that they. could not spade it; that lie thought it was safe and the men thought it was safe; that intervals of four or five feet in width were left, under which they tunneled, and that these served as braces.

If these witnesses told the truth, Lovell assumed the risks, and appellee can not recover. It is true that there was evidence tending to impeach some of these witnesses. Four witnesses testified that they had known Hanley for years, and that his reputation for truth and veracity was bad. Charles Gent, the plaintiff, testifies that he had a conversation with Lewallen before he left the city in which he said that no notice or warning was given to any of the men in the ditch. Bichard Taylor, contradicting Chadwick, testified that Chadwick had told him within two weeks, that Degenhardt had given him a suit of clothes. Chadwick admitted borrowing §20 from appellant to pay expenses for burying his sister, but says he gave his note for it. He denies having told Taylor that appellant gave him. a suit of clothes, but says he told him he borrowed the money from one Dorsey with which to buy the clothes. Chaussee, however,- is in no way impeached. He testifies as given in the record, “ He (Degenhart) was there all day.”

Q. Did you hear any conversation between him and the men in the ditch? A. He told them a dozen times to be careful, and I heard one man tell him there was no danger.

Q. How long before the cave-in did you hear that man tell Degenhardt that there was no danger ? A. About a half hour or somewhere along there.”

Chaussee was not acquainted with the men, having only worked there a day, and does not know which one made the remark.

His testimony, then, corroborates Hanley, Lewallen and Chadwick.

If this class of evidence is true, the deceased affirmatively assumed the risk of working in the ditch without its sides being protected. In addition to this is the uncontroverted fact that he did work there with it unprotected, and that there is no evidence to indicate that he was not as fully acquainted with the risks of so working as was appellant. If this was so, without evidence to show that he worked under such commands or compulsion as to take the case out of the general rule, his administrator can not recover. This is so although there may have been a safer way of doing the work.

“ If a servant knowing the hazards of his employment, as the business is conducted, is injured while engaged therein, he can not maintain an action against the master for the injury merely on the ground that there was a safer mode in which the business might have been conducted, the adoption of which would have prevented the injury.” Simmons v. The Chicago & T. R. R. Co., 110 Ill. 340.

While reluctant to interfere with the finding of a jury upon issues of fact, the evidence forces upon us the conclusion that sympathy for the widow and orphan child of the deceased, rather than a dispassionate consideration of the evidence and the instructions of the court, must have influenced the jurors in making their verdict.

The case should be submitted to another jury. Judgment is therefore reversed and the case remanded.


text:
    H. G. F. Draves v. People, etc., use of Road District, etc.
    1. Road Labor — Exemptions for Physical Disability — Burden of Proof— In. a prosecution for a failure to pay a poll tax, the burden is upon the defendant to show that he is not an able-bodied person liable to pay a poll tax.
    2. Presumptions — That a Person Once Able-Bodied Remains so.— In a prosecution for a failure to pay a poll tax, where proof is made that the defendant was included by the commissioners in the list of able-bodied men, and he pleads that he is not, if there is evidence showing that he was once able-bodied, and if, after testimony introduced by him to prove he is not, a preponderance of the evidence, backed by the presumption of law that he still remains so, is sufficient to warrant a verdict of guilty.
    Prosecution for a Failure to Pay a Poll Tax. — Appeal from the Circuit Court of Randolph County; the Hon. Benjamin R. Burroughs, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    J. B. Simpson and Alexander Hood, attorneys for appellant.
    H. Clay Horner, attorney for appellee.
   Mr. Justice Worthington

delivered the opinion of the court.

This is an action commenced by warrant issued by a justice of the peace, against appellant, charging him with failure to pay $3 poll tax. Appellant defended upon the ground of physical disability. The case was tried by jury in the Circuit Court, and appellant was found guilty and fined $6, upon which verdict judgment was rendered, and an appeal taken.

The suit was brought under the following paragraph of Sec. 186, of Chapter 121, Hurd’s Stat. 1899 :

“ The treasurer shall within twenty days after the regular meeting in June of each year, make a complaint, under oath, before any justice of the peace of his county, against each person who has not paid his poll tax, unless good cause be shown why such complaint should not be made, and such justice of the peace shall thereupon issue his warrant to any constable of his county against any person complained against, and shall upon his arrest, proceed to hear and determine the cause according to law, and in case the issue be found against the defendant, he shall be fined in a sum not exceeding §25, and not less than double the amount which shall appear to be due from him for poll tax, and he shall stand committed until fine and costs are fully paid.”

Ho error in giving instructions for plaintiff was noted in-motion by appellant for new trial. The error assigned on the record upon thisground will therefore not be considered.

The modification by the court of appellant’s first instruction, in which he defined an able-bodied man as one who was “ able to perform ordinary hard labor for a full day, without unusual pain 'or suffering arising from the effects of such labor,” by substituting the words “ able to perform ordinary labor,” was not error. Ordinary labor, and not ordinary hard labor, is all the statute requires.

The court refused the following instruction asked-by appellant:

“ The court instructs the jury that it devolves upon the plaintiff to prove by a clear preponderance of the evidence that the defendant, Braves, is an able-bodied man as defined in these instructions, before you are authorized to find him guilty.”

In this refusal there was no error.

The statute requires the commissioners to make a list of able-bodied men between the ages of twenty-one and fifty years. That list was prima facie evidence that appellant was an able-bodied man.

“ It is a presumption of law, that public officers perform their duties.” Town of Fenton v. Peters, 50 Ill. App. 41.

It was not necessary then, in the first instance, to prove specifically by other evidence that appellant was able-bodied. When proof was made that appellant had been included by the commissioners in the list of able-bodied men, the burden was upon him to show that he was not able-bodied. If, after testimony introduced by him to prove this defense, a preponderance of the evidence, backed by the presumption of law that he was able-bodied, still remained, it was sufficient to warrant a verdict of guilty. The cases cited by appellant to the effect that when suits are instituted for violation of ordinances or of statutory requirements, there must be a clear preponderance to warrant convictions, are not in point.

These suits were to collect fines or penalties.

It is held in Town of Fenton v. Peters, cited supra, that an action under the statute to recover poll tax is not an action to recover a fine or penalty.

There is no substantial error shown in the admission or exclusion of evidence.

Judgment is therefore affirmed.


author: Mr. Presiding Justice Creighton

text:
    George T. Jarvis, Receiver, etc., v. George W. Drake.
    1. Negligence — Of Switchmen in Mahing Running Switches.— When a running switch is to be made by an employe of a railroad company, it is his duty to try the switch and see that there is nothing to prevent it from working properly, before signaling the engine to come ahead; and his failure to do so, without justifiable cause, is negligence jier se on his part and precludes a recovery.
    Trespass on the Case, for personal injuries. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding, Heard in this court at the February term, 1901.
    Reversed, with a finding of facts.
    Opinion filed September 4, 1901.
    Kramer, Creighton & Shaeffer, attorneys for appellant.
    F. C. Smith and M. Millard, attorneys for appellee.
   Mr. Presiding Justice Creighton

delivered the opinion of the court.

.This was an action in case, in the City Court of East St. Louis, by appellee against appellant, to recover for a personal injury. Trial by.jury. Verdict and judgment in favor of appellee for $1,999.

The declaration charges that appellee was in the service of appellant as switchman; that appellant allowed a certain switch to be out of repair and in a defective condition, by means whereof appellee, while endeavoring to throw such switch, was made to slip and fall, whereby his right hand was caught and run over by the wheels of a moving car, resulting in the loss of the fingers of his hand:

The testimony is very conflicting and directly contradictory as to whether the switch was in fact out of repair or in any respect defective, but the testimony tends to show that on some occasions it would throw hard, and if it was not kept oiled, or dirt was allowed to accumulate between the rails, fbese conditions would make it harder to throw, and that on the occasion of the injury there was some “ sand or stuff ” between the rails, and that appellee had to push so hard to move the switch that his feet slipped out from under him and his hand slipped off the lever, causing him to fall with his hand across the rail.

Appellee was a switchman and had been in that service for sixteen years, and had been in the service of appellant as a helper on a switching crew in East St. Louis for four or five months immediately prior to and up to the time of the injury complained of, and was fully acquainted with the duties and dangers of his position.

The evidence conclusively shows that the making of a running switch, such as was being made when appellee was injured, is always attended with danger; that there is no time for examination of a switch after the engine has passed; that the operation of a switch is always liable to bo obstructed by the falling or blowing of cinders, bits of coal, pebbles, sand or dirt into the space between the switch-rail and the track-rail, or by the formation of ice or the hardening of oil in cold weather; that such obstructions either prevent it from working at all, or make it hard or difficult to work; that some of these conditions are liable to occur or be present at any time, and that it is always, when a running switch is to be made, the duty of a switchman to try the switch and see that there is nothing "to prevent it from “ working properly,” before signaling the engine to come ahead; that such was the duty of appellee on the occasion of his injury; and that on this occasion appellee went to his place at the switch,gave the signal to come ahead, “ to make the run,” and that before signaling for the engine to come ahead “ to make the run,” appellee did not try the switch or make any effort or attempt to discover whether the switch was in a condition to “ work properly ” or not, but wholly and without justitiable excuse neglected this important duty. This was negligence per se on his part, which contributed directly to his injury. In such case there can be no recovery.

The judgment of the Circuit Court is reversed.

Finding of Facts. — We find that George W. Drake, appellee, was not in the exercise of ordinary care and caution for his own safety at the time and on the occasion of the injury complained of, and that he was guilty of negligence which contributed to such injury.


author: Mr. Justice Creighton delivered

text:
    Eugene Ackerman, Sheriff, etc., Minnie R. Spaulding et al., Exrs., etc., v. Jesse Arbaugh et al.
    1. Fraudulent Conveyances — What are Not to he Regarded as Such. — A father owned land, and prior to the rendition of a judgment against him he sold it to his sons'and executed and delivered to them a bond for a deed of it which was duly recorded and possession of it taken by the sons prior to the recovery of the judgment against the father. They agreed to pay him for the land as the purchase price of it the sum of $6,000. There was no evidence that the land was worth more than $6,000, or that the father did not have an abundance of property left to pay his debts after conveying the land in question to his sons. Held, that the conveyance was not fraudulent.
    Bill in Aid of an Execution. — Error to the Circuit Court of White County; the Hon. Prince A. Pearce. Judge, presiding. Heard in this court at the August term, 1901.
    Affirmed.
    Opinion filed October 21, 1901.

      Thomas J. Smith and E. L. Organ, attorneys for plaintiffs in error.
    Organ & Ashley, attorneys for defendants in error.
   Mr. Justice Creighton delivered

the opinion of the court..

On the 21st day of May, 1897, defendant in error, Jesse Arbaugh, executed certain promissory notes aggregating $400, to one J. B. Tibbets. These notes were duly indorsed to one L. C. Garwood. Garwood died testate, and plaintiffs in error Minnie E. Spaulding and Maria Garwood, were duly appointed and qualified as executrices of said Gar-wood’s will. In due course, as such executrices, they” brought suit on the Arbaugh .notes and obtained judgment. Execution was issued on the judgment and placed in the hands of plaintiff in error Ackerman, who was then sheriff of White county. Ackerman proceeded to levy on certain real estate as the property of said Jesse Arbaugh, and was about to advertise and sell the same in satisfaction of the judgment. This real estate had once been owned by Jesse Arbaugh, but prior to the rendition of the judgment against him he had sold it to his sons, Jesse L. Arbaugh and John W. Arbaugh, two of the defendants in error herein, and had executed to them a bond for deed, which bond was duly recorded and the purchasers in possession before judgment was rendered against their father.

At this stage, defendants in error interpose their bill in chancery against plaintiff in error Ackerman, as sheriff, setting up in the bill many immaterial charges, but setting up also the material matter that Jesse L. Arbaugh and John W. Arbaugh were the owners of, and in possession of the land levied on, and praying for an injunction restraining the sheriff from selling the land in pursuance of his levy. Plaintiffs in error Spaulding and Garwood, as executrices, appeared and petitioned the court to be made parties defendant with the sheriff. The prayer of the petition was granted, and they answered, charging, among other things, that the conveyance by Jesse Arbaugh to his sons, Jesse L. Arbaugh and John W. Arbaugh, was made without consideration and for- the fraudulent purpose of hindering and delaying creditors.

Upon final hearing the court rendered a decree in behalf of defendants in error Jesse L. Arbaugh and John W. Arbaugh, perpetually enjoining the sheriff from, selling the land levied on. Ko relief is granted in behalf of defendant in error Jesse Arbaugh.

The undisputed evidence is, that before the judgment was rendered Jesse L. and John W. had bought the land of their father and agreed to pay as purchase price the sum of $6,000. There is no evidence that the land was worth more than $6,000, nor that the. father did not have an abundance of property left to pay all his debts after conveying this to his sons. There is no evidence of bad faith nor proof of fraud in this record.

The decree of the Circuit Court is affirmed.


author: Mr. Justice Bigelow

text:
    Town of Stites et al. v. Wiggins Ferry Co.
    1. Statutes — Canora of Construction — Noscitur a Sociis. — If general words follow an enumeration of particular cases in a statute such general words are held to apply only to cases of the same kind.
    2. Same — Construction of Section 20, Chapter 121, JR. S., Roads and Bridges. — Section 20 of Chapter 121, R. S., entitled “ Roads and Bridges ” (Hurd’s Ed. 1899, p. 1472), enlarges the powers of the commissioners of highways so that they are not only authorized to build bridges but other distinct and expensive works on the road.
    Bill for an Injunction. — Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaefer, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    Benjamin H.. Canbt and Kramer, Creighton & Shaeeeer, attorneys for appellants.
    Charles W. Thomas, attorney for appellee.
   Mr. Justice Bigelow

delivered the opinion of the court.

This appeal is prosecuted from a decree of the Circuit Court of St. Clair County, perpetually enjoining appellants from, issuing bonds of the town of Stites to the amount of $25,000. Besides the town itself, the supervisor, highway commissioners, and the town clerk of the town, and also the village of Brooklyn, were made parties to the bill. All of the defendants, except the village of Brooklyn, were perpetually enjoined from issuing and delivering the bonds.

This proceeding involves the construction of the powers of the town as defined in Section 20 of Chapter 121, Hurd’s R. S. 1899. The cause was heard on bill and answer, together with a stipulation that appellants have in all respects taken the necessary steps contemplated by said section. The act sought to be done by appellants is the “ construction ” of a road known as the East St. Louis & Brooklyn road, the same being at the present time a public highway, having a total length of 9,000 feet, 5,080 feet of which is • ■ within the corporate limits of the village of Brooklyn, 2,911 feet is within the town of Stites and 1,009 feet is one-half in the town of Stites and one-half in the city of East St. Louis.

There is no claim that any part of the road as thus described is outside the limits of the town of Stites. The road being already a public highway, the particular “construction ” for which appellants desire the issue of the bonds is by elevating the road so as to put it on a level with the Clover Leaf railroad track, and widen it so that it will be forty feet wide on top, and to construct a macadam travel way, thirty feet widej in the center. t

The answer admits that appellee is a property owner and taxpayer of the town. The proposition to construct and make this road as stated, was carried by a majority vote at a special town meeting, held at the town hall in the village of Brooklyn, on the 19th of February, 1900.

It is the contention of appellee that such a work as appellants are contemplating can only be carried on under the ■ act of June 18, 1883, known as the “Hard Roads Act.” Hurd’s R. S. 1899, Chap. 121, Secs. 129-148.

On the other hand appellants contend that section 20, above referred to, is almost identical with Section 112 of Chapter 121, B. S. 1874, and that it is a revision thereof; that the latter section empowered the commissioners of highways simply to build bridges and that section 20 enlarged the powers of the commissioners so that they could not only build bridges, but “other distinct and expensive work on the road,” so that the expression just quoted empowers the commissioners to construct this road by the issue of the bonds.

It was observed arguendo, in People v. Commissioners of Highways, 32 App. 164, that the statute treats of roads and bridges as separate legislative subject-matters; this distinction is expressly recognized in section 20, where a bridge is considered “ distinct * * * work on the roads.” If the construction of this road is authorized under this section, then it would follow that the construction of the entire road itself would be “distinct * * * work on the road,” just as a bridge within the scope of the language of the law, is distinct work on the road.”

It is evident from the language of the statute that a bridge is a distinct legal conception from the road itself, though it may form a part thereof. To predicate of the entirety of a legal conception, “ distinctness ” from itself, involves a manifest incongruity. If, however, this may be said to place too literal a construction upon the words under consideration, then there is a well recognized canon of construction, the principle noseitur a sociis.

If general words follow an enumeration of particular cases, such general words are held to apply only to cases of the same kind as those which are expressly mentioned, unless there is something to show that a wider sense was intended. Shirk v. People, 121 Ill. 61; Webber v. City of Chicago, 148 Ill. 313; Ambler v. Whipple, 139 Ill. 311. The use of the word “distinct” rebuts the idea that a wider sense was intended; and when it is recollected that section 20 was passed by the same legislative body that enacted the “ Hard Boads Act,” the intention of the legislature would clearly seem to be that the building of “ other distinct and expensive work on the road ” must have the same or kindred relation of separableness from the road itself that a bridge has. The construction contended for by appellants would require the absolute elimination of the word “ distinct.” The case of McKeon v. Wolf, 77 Ill. App. 325, contains a valuable opinion on the matter of construing ' statutes framed as section 20 is, and we can add nothino- to the reasoning therein contained.

' The decree of the Circuit Court, being in accord with the views herein expressed, is therefore affirmed.


text:
    Eliza J. Williams v. City of Carterville.
    1. Photographs — As Evidence. — A photograph of a sidewalk upon which an accident occurred, shown to be correct, is properly admitted in evidence, and taken by the jury to their room when they retire to consider of their verdict.

      2. Practice — Allowing Papers, etc., Admitted in Evidence to be Taken to the Jury Room. — It is not error for the trial judge to allow papers, other than depositions or articles introduced in evidence, to be taken by the jury with them to their room when they retire to consider of their verdict, nor is it error per se to refuse to allow them to be so taken. .
    3. Same — Order of Proofs — A plat intended to be used in evidence should first be shown to be correct; but when it is exhibited and used for reference without such preliminary proof, and where no evidence is afterward introduced of its correctness, such use is not reversible error.
    4. Same — Where No Motion is Made to Exclude an Objectionable Answer. — Where the answer to a question is objectionable and there is no motion to exclude it, and no ruling had nor exception taken when the objection to it is overruled, the question is not before this court for consideration.
    5. Sidewalks— Constructive Notice of Defects. — In the absence of any proof of actual notice, and the positive testimony of city officers and others who had frequently passed over the walk in question, and in' addition, had examined it after the accident and failed to see the condition of things which is claimed to have existed and caused the accident complained of, a jury will be warranted in finding that the city authorities had no notice of the alleged defect, even although it might have in fact existed for more than four weeks,

      Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Williamson County; the Hon. Edmund D. Youngblood, Judge, presiding. Heard in this court at the August term, 1901.
    Affirmed.
    Opinion filed October 21, 1901.
    Statement. — Appellant sued appellee, alleging injuries through falling by reason of a defective sidewalk.
    The negligence charged by the amended declaration is that appellee, having undertaken to keep its sidewalks sufficiently lighted to enable travelers to pass along them in safety, failed to do so, and negligently suffered a certain crossing, known as Walnut Street crossing, to be and remain in unsafe and bad repair and in darkness; and divers of the planks wherewith the sidewalk and crossing were laid, to be and remain weak, springy, bent and warped; and that they had been in such bad repair for more than four weeks, and that the defendant knew, or by reasonable diligence ought to have known their condition, etc.
    A demurrer was filed to the amended declaration, which being overruled, the general issue was pleaded, a trial had, verdict rendered for defendant, and plaintiff appealed.
    R. B. Morton, attorney for appellant.
    J. L. Gallimore and W. W. Clemens, attorneys for appellee.
   Mr. Justice Worthington

delivered the opinion of the court.

Divers errors are assigned by appellant, all of which are not necessary to be noticed in the view we take of the case. An ordinance providing for lighting the city and a photograph of the sidewalk where appellant fell, sworn to be correct, were introduced in evidence. Appellant asked that the jury be allowed to take them to the jury room when they retired to consider their verdict. This the court refused and appellant excepted. The language of the statute is, Papers read in evidence, other than depositions, may he carried from the bar by the jury.” Starr & Curtis’ Stat., Sec. 56, Chap. 110.

The judge may or may not, in his discretion, allow papers other than depositions, or articles introduced in evidence, to be taken by jurofs when they retire to consider their verdict. It is not error$er se to refuse to allow them to'be so taken.

Objection was made by appellant to the examination of a witness from a plat exhibited, without first showing that the plat was correct. It should first have been shown to be correct, but as there was afterward evidence introduced of its correctness, this was not reversible error.

Objection was made to the question of appellee’s counsel, “ What condition was that walk in when .you noticed it after the accident ? ”

Objection overruled and exception taken.

A. It was in fair condition.

Q. Would you consider it to be in reasonably safe condition for a pedestrian í A. Tes, sir.

Objection by plaintiff, and objection overruled but no exception taken.

The question was not in itself objectionable, but the answers were.

The question as to condition might have been pertinently answered by describing its condition. It did not call for an opinion as to whether it was safe or not. As there was no motion made to exclude the answers and no ruling had, nor exception taken when the objection to them was interposed, the alleged error is not before us for consideration. If the sidewalk was in an unsafe condition as alleged in the declaration, did the city have notice of its condition ? It must have had notice, either actual or constructive, to be held liable in this action. City of Chicago v. Margaret Murphy, 84 Ill. 224; City of Joliet v. Helena Gerber, 21 Ill. App. 622.

This question was for tho jury to answer. They have • found for appellee. After a careful consideration of the evidence we fail to find proof of actual notice. In the • absence of such notice, we think the testimony strongly tends to prove such a condition of the sidewalk before, at the time of, and after the accident, as to exclude the presumption of constructive notice. '

The injury occurred after dark on the sidewalk on Wal- ■ nut street where it meets the crossing of Grand avenue. Appellant testifies that the plank on the sidewalk “ sprang down ” close to the end of the crossing; that she struck her foot against the crossing and fell; that she was sure the springing of the plank caused her injury; that'she guessed city authorities knew of it; that it had been out of repair for six months.

There was other evidence that tended in some manner to corroborate appellee as to the condition of the walk, and the length of time it had been out of repair.

Price Watson, for appellee, testified that he had been street commissioner for two years; that he was acquainted with the sidewalk in question; that he passed over it four or five times a week prior to the accident; that there was nothing to call attention to it; that he saw it the morning after the accident; that he has made no repairs at that point since the accident; that the walk is composed by onebv-six stuff, with three-by-three stringers. It is of oak.

Dundy, an alderman, testifies that he examined the walk; that he tested it by standing on it, and that it was not springy.

F. 0. Berard, an alderman, testifies that he frequently passed over the walk prior to the accident, but noticed no springiness in it; saw no necessity for any repairs.

S. H. Walker, another alderman, testifies substantially to the same effect. Other -witnesses testify to passing over the crossing and walk before the injury complained of, and that they noticed no defects, or springing of the planks.

It was for the plaintiff affirmatively to prove not only the sidewalk’s defective condition which she claims caused her fall, but in addition, to prove notice of such condition to the city. In the absence of any proof of actual notice, and the positive testimony of city officers and others who had frequently passed over the walk, and in addition, had examined it after the accident, and failed to see the condition which appellee testifies caused her to fall, we think the jury was fully warranted in finding that the city authorities had no notice of the defect alleged, even although it may have existed as alleged in the declaration, which allegation is by no means clearly proved.

We find no substantial errors in the instructions. Judgment affirmed.


text:
    Emma E. Allen v. Continental Insurance Co.
    1. Judgments — When Equity Will Not Interfere with the Enforcement of. — Equity will not interfere with the enforcement of a judgment at law unless the judgment debtor could not have availed himself of his defense at law, or was prevented from doing so by the fraud of the opposite party, or by accident or mistake, unmixed with fault or negligence of his own.
    2. Injunctions — Against Judgments in the Absence of Fraud in the Opposite Party. — In the absence of fraud or deception by the opposite party, an injunction will rarely be allowed against a judgment which the party complaining has suffered to be entered against by default.
    8. Negligence — In Permitting a Judgment to Qo Against Him by Default. — Where a party has negligently permitted a judgment to be entered against him by default, such negligence is sufficient to prevent him from obtaining the aid of an injunction to restrain its enforcement.
    Injunction, to restrain the collection of a judgment at law. Error to the Circuit Court of St. Clair County; the Hon. Martin W. Schaefer, Judge, presiding. Heard in this court at the August term, 1900.
    Reversed and remanded with directions.
    Opinion filed March 11, 1901.
    Rehearing denied.
    Messick, Moyers & Crow, attorneys for plaintiff in error.
    Turner & Holder, attorneys for defendant in error.
   Mr. Presiding Justice Creighton

delivered the opinion of the court.

This was a proceeding by bill in chancery, by defendant in error against plaintiff in error, in the Circuit Court of St. Clair County, to enjoin the collection of a judgment at law, which, prior to the filing of the bill, plaintiff in error had obtained in said court against defendant in error.

The bill, in substance, charges that defendant in error, being authorized to do business in the State of Bhode Island, did in Hay, 1897, issue an insurance policy to plaintiff in error in the sum of not to exceed $2,200 on property located in Cranston, R. I., said insurance being distributed as follows : $1,750 on dwelling house, $250 on household furniture, $150 on private barn, $100 on wagons, carriages, etc., contained in said barn; other insurance permitted. Payable, in case of loss, to Bichard W. Andrews, of Fisk-ville, B. I., mortgagee, as his interest might appear. That afterward, to wit, in August, 1897, the interest of the said Bichard W. Andrews, as mortgagee, became and was transferred to Citizens Savings Bank, of Providence, B. I., and the said policy of insurance changed so as to make the loss payable accordingly. Among other terms and conditions, the policy provides that, if fire occur, the insured shall give immediate notice of any loss thereby in writing to the company, and within sixty days render a sworn statement to the company, stating the cash value of each item and the amount of loss claimed thereon; that in September, 1897, said building and a part of its contents were consumed by fire; that plaintiff in error did not immediately, or at any time thereafter, give notice in writing to the company, and did not within sixty days make proof of loss; that the company never has waived such notice and proof of loss, and has never authorized any person or persons so to do; that there was at the date of the fire another insurance policy for the same amounts and upon the same property, issued by the Queen Insurance Company to plaintiff in error, loss payable to said Citizens Savings Bank, as mortgagee; that after the fire an adjustment was made and agreed upon by and between the Queen Insurance Company, defendant in error, and the mortgagee, and that defendant in error prior to September 17,1898, paid the amount in full of the loss required of it by the terms and conditions of its policy, to said mortgagee, the Citizens Savings Bank; that on September 17, 1898, plaintiff in error, by George A. Crow, her attorney, commenced suit against defendant in error in the Circuit Court of St. Clair County, Illinois, by filing with the clerk thereof a praecipe for summons, claiming damages in the sum of $2,250; thereupon service was had upon defendant in error requiring it to appear on the second Monday of January, 1899; that it caused inquiry to be immediately made as to the nature of. said suit, and learned that no declaration had been filed; that it caused inquiry to be made at the office of the clerk of said St. Clair County Circuit Court, repeatedly, in September, October and December, 1898, and up to January 7, 1899, when it was informed that no declaration had been filed, and that the time for filing same had expired and the suit would have to fall; that under the laws of Illinois, regulating practice in courts of record, a declaration must be filed by plaintiff at least ten days prior to the first day of the term of a court to which suit has been brought, otherwise the suit would be dismissed. Defendant in error was further informed that in suits brought upon an instrument in writing it was also a requisite under the practice in Illinois to file with the declaration a copy of such written instrument sued upon; that it was wholly ignorant of the provisions of the practice act permitting declarations to be filed on or before ten days prior to the first day of the-term of court next preceding the term to which the suit is brought; that after it had learned from its agent the status of the suit, being deceived by the information so received, and wholly and entirely ignorant of the fact (law) that said suit might be continued and a declaration filed therein to the next subsequent term of court, and understanding that the case was to be dismissed, it gave the matter no further attention until about the 30th day of June, 1899, when it was notified by the sheriff of St. Glair county that he held an execution in favor of plaintiff in error against defendant in error for the sum of $416.25 and costs of suit, when upon investigation it found that said suit which defendant in error believed to have been dismissed, had been continued to the April term, default taken and judgment rendered against defendant in error; that the plaintiff in error falsely and' fraudulently -alleged in her declaration that said policy of insurance issued by defendant in error covered household furniture to the extent of §500; that in excuse of her failure to file copy of said insurance policy she falsely and fraudulently alleged that she could not file a copy of the policy sued on because the original policy was, without her consent and connivance, in possession of defendant in error; that plaintiff in error well knew that the two charges of her declaration above set out were false and fraudulent; that in making proof of the amount alleged to be due before thé court without a jury, she produced upon the stand one T. E. Allen, who testified that he was the husband -of plaintiff in error and had, as her agent, transacted the business of insuring her property with defendant in error, and that the policy covered the household furniture to the extent of §500; that the said T. E. Allen produced and offered in evidence a paper purporting to be signed by plaintiff in error, Queen Insurance Company, Continental Insurance Company and Western Assurance Company, and testified that said paper was an agreement arrived at by and between the parties purporting to sign the same; that the said Queen Insurance Company had paid to plaint- ■ iff in error in settlement of its share of the loss, $266; that the policy in the Western Assurance Company covered the sum of $1,500 on household furniture, and the policy in defendant in error company the sum of $500; that defendant in error never authorized the signing of such agreement; that the plaintiff in error was not at the time of the judgment a resident of St. Clair county; that at the time of the fire she was a resident of Rhode Island; that it is informed and believed that she was not, at the date of the commencement of said suit, a resident of St. Clair county and was not legally authorized to bring said suit in said county even if she had been in possession of the policy and the loss therein provided for had been made payable to her; that it did not owe when said suit was commenced, and does not now owe to plaintiff in error anything under the terms of the policy; that it never became liable to her or her assigns in a greater sum than $250 on account of household furniture; that plaintiff in error is insolvent and has no property out of which defendant in error could recover the judgment and costs or any portion thereof; that plaintiff in error has caused an execution to be issued on said judgment and placed the same in the hands of the sheriff of St. Clair county,Illinois; that said sheriff has demanded payment of same and unless restrained will proceed to take the property of defendant in error in satisfaction thereof. The bill concludes with a prayer for a writ of temporary injunction restraining the taking of any further steps to collect said judgment,and that upon final hearingthe injunction be made perpetual; that in case the court shall hold that plaintiff in error had a legal right to maintain her said action against defendant in error, that said judgment be set aside and an order entered permitting it to plead to her supposed cause of action and to have a full and fair hearing in said cause; concluding with prayer for general relief.

Upon the filing of the foregoing bill a temporary injunction was granted, restraining the collection of the judgment excepting the sum of $203.12, with legal interest thereon from April 17, 1899, and the costs of said suit. At the following term of court, plaintiff in error filed a motion to dissolve the injunction upon the grounds that the bill does not state a case sufficient to warrant the issuance of the injunction. As counsel for defendant in error say, “ In other words, the plaintiff in error demurred to the bill.” The court denied the motion and plaintiff in error elected to stand by it. The bill was taken as confessed and the injunction made perpetual.

The only question involved in this record is, does the bill state a case sufficient to warrant the issuance of the injunction. It is true that courts of equity have jurisdiction to stay proceedings at law after judgment recovered, but a bill seeking relief of this nature should be carefully scrutinized. There are but few grounds sufficient to warrant a court of equity in interfering with a judgment of a court of law.

“It will not suffice to show that injustice has been clone by the judgment against which relief is sought, but it must also appear that the result was not caused by .any inattention or negligence on the part of the person aggrieved; and he must show a clear case of diligence to entitle himself to an injunction.” High on Injunctions, Third Edition, Section 113.

In Bardonski v. Bardonkski, 144 Ill. 284, it is said:

“ It is well settled that equity will not interfere with the enforcement of a judgment- at law, unless the judgment debtor could not have availed himself of his defense at law, or was prevented from so doing by the fraud of the opposite party, or by accident or mistake unmixed with fault or negligence on his own part.”

The mistake or negligence of a party’s attorney or agent is the party’s own mistake or his own negligence and can not be relieved against in a proceeding of this character. Fuller v. Little, 69 Ill. 229.

“ In the absence of fraud or deception (by the opposite party) an injunction will rarely be allowed against a judgment which complainant has suffered to go against him by default. And where one has negligently permitted judgment to go against him by default, such negligence is sufficient to prevent him from obtaining the aid of an injunction against the judgment. Indeed, in a case of default, a court of equity may refuse to consider the merits of the case any further than the question of complainant’s negligence in not asserting his rights at law,- and no sufficient excuse appearing for his having neglected to defend at law, the injunction will be refused.” High on Injunction, Third Edition, Section 277.

Tested by the rules and requirements laid down in the authorities cited and quoted from, which in our opinion correctly state the law applicable to this case, the bill clearly fails to state a case sufficient to warrant the issuance of the injunction. As was, in substance, said in Bardonski v. Bardonski, above cited, the law gave defendant in error its day in court, with the privilege of making its defense, and it can not now invoke the aid of a court of equity to relieve it from the consequences of its own negligence. If it was mistaken as to the law, the law can afford it no relief, for all are presumed to know the law. If it was mistaken as to the facts, it was not the result of fraud or deception on the part of plaintiff in error. The decree of the Circuit Court is reversed and the cause remanded, with" directions to the Circuit Court to enter a decree dissolving the injunction and dismissing the bill at costs of defendant in error.

Reversed and remanded with directions.


text:
    Walter A. Wood Mowing & R. M. Co. v. John J. Trexler.
    1. Appellate Court Practiob — Objections Made to the Admission of Evidence to be "Shown by the Abstract. — Objections made to the admission of improper evidence must be preserved in the record and shown by the abstract.
    2. Contracts — Buie of Construction. — Parties have a right to make their agreements in such language as they may choose to use, and it is the duty of the courts in construing them, even though claimed-to be undertakings to answer for the defaults of others, to give effect, if possible, to every word used in them.
    Assninpsit, on a contract of guaranty. Appeal from the Circuit Court of Jasper County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the August term, 1901.
    Reversed and remanded.
    Opinion filed October 21, 1901.
    Statement. — November 28, 1891, appellant and appellee entered into a contract in writing by which appellant agreed to furnish certain of its harvesting machines to appellee, to be sold in a certain district, as agent and trustee of appellant, on commission, the commissions on the sales to be the difference between the prices at which the machines were to be furnished and the retail prices at which they were sold, after deducting discounts, expenses and demands o£ all kinds growing out of the sale Of the machines.
    The contract is lengthy, consisting of seventeen special clauses, the most of which are unnecessary to be noticed, but the particular clauses involved in this case are as follows :
    “Ninth. Party of the second part agrees to make sales only to parties of well-known responsibility and good reputation for payment of their debts, and to require that at least one of the makers of each note shall certify, in property statement on said note, to his owning an improved farm, not subject to incumbrance, liens and exemptions exceeding in amount one-third of the actual value of such farm, and worth at least $1,500 over and above all incumbrances, liens and exemptions.
    Tenth. Party of the second part agrees to guarantee the payment of all notes andr enewals of notes taken under this agreement (not having property statement properly filled out as required in clause nine of this agreement), and further agrees to indorse all such notes and renewals of notes in the following form, to wit:
    ‘For'value received, I (or we) hereby guarantee the payment of the within note. Demand for payment, protest and notice of protest waived.’
    But failure by said second party to indorse said notes shall not affect the above guarantee of payment.”
    On June 16,1892, appellee sold a reaping machine to one F. E. Huerlott, and took therefor two notes of that date, for $45 each, payable to the order of appellant, on or before September 29, 1893, and September 29, 1894, respectively, with interest at seven per cent per annum. The notes were signed by F. E. Huerlott and Sam Huerlott. On the back of each note (the blanks of which had been furnished by appellee) there were printed blanks as follows:
    “ For value received,-hereby guarantee the payment of the within note. Demand for payment, notice of protest and protest waived.
    (See contract.)
    For the purpose of obtaining the within credit.”
    “ I hereby certify that I own-acres of land in my own name in the-, Section-, Township-, Bange-, in the County of -, State of -, which is worth, at fair valuation, $-; all encumbrances do not exceed $-, and the title is perfect in me in all respects. I have stock and personal property to the amount of $1,500, and my debts do not exceed $-. There are no judgments against me.”
    ¡Neither the blank guaranty, nor the property blank on either of the notes was filled out or signed.
    Appellant brought suit against appellee on the contract, to recover the amount of the notes, before a justice of the peace of Jasper.county, and had judgment therefor, from which appellee appealed to the Circuit Court of the county, where the case was tried by a jury, and at the close of the evidence, the jury, under an instruction of the court, to which appellant excepted, found for the defendant, and after overruling plaintiff’s motion for a new trial, judgment was rendeTed on the verdict.
    I. D. Shamhabt, attorney for appellant.
    Gibson & Johnson, attorneys for appellee.
   Mr. Justice Bigelow

delivered the opinion of the court.

Twelve errors are assigned on the record, the most of which are unnecessary in order to raise the questions involved in the case, and hence need not be specially noticed.

It is urged that the court erred in admitting improper evidence to go to the jury on behalf of appellee, but if so, all that need be said about it is that no objection was made to it, nor was any exception taken to the ruling of the court in admitting it; at least none appears in the abstract.

The principal question raised and argued by counsel is whether appellee is bound by his contract to pay the notes. We do not understand counsel for appellee as contending that if appellee had guaranteed the payment of the notes, on the notes themselves, he would not be liable to pay them, nor could he well maintain such a contention, in view of the well settled rule of law of this State on the subject of absolute guaranties of payment of commercial paper. But it is said by counsel for appellee that “ agreeing to do an act, and actually doing the act, are distinctly separate matters.” This is true, as is demonstrated by the case under consideration. An agreement to do a thing is an obligation to do it, generally expressed in words, while the doing of it is the ultimate thing sought by the agreement and fulfills the obligation.

It is also said by counsel: “ The liability of a guarantor is ascertained by strict construction of his undertaking, beyond which he is in no way bound.” This statement is quite correct; but another rule of law must not be lost sight of in construing agreements, even when claimed to be undertakings to answer for defaults of others, and that is, that parties have a right to make agreements in such language as they may choose to use, and it is the duty of courts construing an agreement, to give force and effect, if possible, to every word used in it. Beech on Modern Law of Contracts, Vol. 1, Sec. 711; Bowman v. Long, 89 Ill. 19; C. B. & Q. R. R. Co. v. Bartlett, 120 Ill. 603.

Appellee knew when he entered into the agreement to sell appellant’s machines, that appellant’s location and place of business was nearly, or quite, a thousand miles distant from the place where the machines were to be sold, and that its general agents could not be expected to have knowledge of the financial conditions of those who would become purchasers of machines; that it was important for appellant to know from the purchasers themselves that they were able to pay for the machines; hence, the plan adopted to get the information, was to require the agent selling the machines on a commission, to require of the purchasers of machines on credit, to furnish information as to their property qualifications, that appellant might know that its machines were being sold to persons to whom it was safe to extend credit. The requirement was reasonable and appellee agreed to comply with it, and if he did not, to assume the burden of the debt himself. It is not pretended that appellee complied with his agreement, or made any effort to do so so, but chose to take the consequences of non-compliance; and these consequences, according to the plain terms of the agree-' ment, were, that he would pay the notes himself if the makers did not pay them when due, and he took upon himself the responsibility of ascertaining that the makers had not paid them. To say, as appellee’s counsel seems to contend, that by appellee’s failure to guarantee the payment of the notes on the back of them, that he was not bound to pay them, because he had not put his guaranty upon them, is in effect saying that he had reserved the power, or at least the privilege, of nullifying his own agreement by doing nothing at all. A construction of the agreement that leads to such a result can not be tolerated. Besides, appellee said in his agreement, “ but failure by said second party to indorse said notes shall not affect the above guaranty of payment.” When once appellee became bound to pay the notes, by his agreement and his failure to secure the property certificates, appellant might safely rely on appellee’s guaranty to pay them, and appellant was not guilty of any laches in failing to proceed against the makers of the notes in an endeavor to collect of them. The authorities in support of this proposition are believed to be uniform, and it would seem a vain display of learning to cite them. When the makers failed to pay the notes as they matured, appellee should have paid them, and looked to the makers to reim- - burse him, at a time when he claims the money could have been realized; and because he did not do so and the makers have since become insolvent, or left the country, as is said by appellee to be the case, appellee is the party guilty of laches, and must suffer the consequences, unless appellant has done some affirmative act that discharges him from performing his contract.

There is some evidence that appellant extended the time of payment of one of the notes, but there is no evidence of any consideration for the agreement to extend it, if any there was.

Whether, if there was a valid extension of the note, it could be said that it was a “ renewal ” of it, so as to bring it within the tenth clause of the agreement, we express no opinion, as the point has not been raised by counsel.

It follows from what has been said that the court erred in instructing the jury to find for the defendant, and for this error the judgment is reversed and the cause remanded.