author: Mn. Justice Brown

text:
    D. C. Murray, Doing Business as D. C. Murray & Co., v. Nancy L. Arthur, George Schmid and Robert Lobb.
    1. Practice — When it is Ert'or to Take a Case from the Jury. — In an action of trespass on the case against several defendants for an injury, where the proofs demonstrate that some one or all of them are responsible, it is error for the court to take the case from the jury.
    2. Building Contracts — Liability of the Owner and Independent Contractors. — Where the plans for the improvement of a building are such that their execution will not necessarily create an injury the owner will not be liable; but if an injury is caused by the negligence of an independent contractor, he alone is liable.
    3. Same — Where the Owner and Independent Contractor are Both Liable. — Under a building contract, where the performance of the work as planned in and of itself will tend to create injury to third persons, both the owner and contractor are liable.
    4. Contractors — When Liable with the Owner Under Building Contracts. —An owner of a building has no right to contract for the mak - ing of improvements upon it which will necessarily create an injury to another, and the contract is no justification to the contractor in a suit by a party who has sustained damages in consequence of its performance. It is as much the duty of the contractor to refrain from executing the contract to the injury of a third person as it was the duty of the owner to have refrained from making it. Under such circumstances, both parties to the contract are responsible to the party injured.
    Trespass on the Case, for damages by water. Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding. Heard in this court at the October term, 1901.
    Reversed and remanded.
    Opinion filed November 15, 1901.
    Reeves & Rots, attorneys for appellant.

      McDougall & Chapman, attorneys for Nancy L. Arthur, appellee.
    H. N. Eton & Son, attorneys for George Schmid, appellee.
   Mn. Justice Brown

delivered the opinion of the court.

D. C. Murray, the appellant, was a tenant in the lawful and exclusive possession of the premises known as 309 and 311 East Main street in the city of Streator. He used the building for a store. Immediately adjoining the Murray store at 307 East Main street is a store building owned by Mrs. Nancy L. Arthur, one of. the appellees. There was a party wall between the buildings only eight inches thick.

Mrs. Arthur decided to improve her premises by extending the building in the rear, and entered into a contract with George Schmid, another appellee, to do the work and furnish the material according to plans and specifications. He sublet the brick-work to Robert Lobb, also an appellee. After the work was begun it was discovered that the party wall was too thin to support the building. Mrs. Arthur then contracted with Lobb to build an additional four-inch wall against the party wall and to tie them together. When the additional wall was brought to the height of the original party wall Lobb’s contract with Mrs. Arthur was completed. The raising of the entire wall higher devolved upon Schmid, under his contract with Mrs. Arthur.

In carrying up the wall and building a chimney the tar and paper roof on the Murray building was torn up and rolled back two feet or more. A heavy rain fell at night. The water came down into Murray’s store and injured his goods. To recover damages for the injury he brought this suit against Mrs. Arthur, Schmid and Lobb. The defendants were all served with process. Mrs. Arthur and Schmid pleaded not guilty. Lobb filed no plea and was not defaulted.

The case was tried with a jury as to all of the defendants. At the close of all the evidence the court instructed the jury to find all of the defendants not guilty, and after denying a motion for a new trial entered judgment against the plaintiff for costs.

The court erred in taking the case from the jury. The proofs demonstrated that some or all'of the defendants are responsible for the injury. No one pretends that the plaintiff is not entitled to recover, but each defendant sought to show that the cause of action was one for which some other defendant was responsible.

If the injury was. caused by tearing up the roof on the Murray building and letting the water descend by reason thereof, then there is evidence upon which a jury might find that either Schmid or Lobb was guilty, possibly both. It is also contended that under the contract between Mrs. Arthur and Schmid, Mrs. Arthur was to determine the kind of material to be used and that she insisted, over Schmid’s objection, upon using a certain kind of brick for the construction of the chimney; that the brick selected were so hard that they prevented the mortar from setting and hardening and that the rain for that reason washed the mortar out and entered and descended through the chimney wall into the store. There is testimony tending to show such a state of facts, and if true, it is difficult to see how Mrs. Arthur and Schmid could escape liability.

Where plans are such that their execution will not necessarily create injmy the owner would not be liable. If the injurv is caused by the negligence of an independent contractor he alone is liable. If, however, the performance of the work as planned in and of itself would create injury, then the owner also is liable. The owner has no right to contract for the doing of that which will necessarily create injury to another, and the contract is no justification to the contractor in a suit by an injured party who has sustained damages in cousequence of the performance of the contract. It was as much his duty to refrain from executing it to the injury of a third party as it was the duty of the owner to have refrained from making it. Under such circumstances both parties to the contract could be held liable to the party damaged.

There is also a provision of the contract between Mrs. Arthur and Schmid which made it the duty of the latter < to protect the briclc-work against rain during the period of construction. If that provision was adequate to have prevented this injury, and the damages arose from Schmid’s failure to perform his contract, then Mrs. Arthur would be exonerated and Schmid would be liable. In no view would the proof permit the exoneration of all the defendants. Which were liable, or whether all were liable, was a ques- ■ tion for the jury under proper instructions.

Before the case is tried again Lobb should be required to plead or be defaulted. For the error in directing a verdict in favor of all the defendants the judgment of the Circuit Court will be reversed and the cause remanded.


source: Caselaw Access Project

author: Mr. Justice Higbbe

license: Public Domain

text:
    Galesburg Electric Motor & Power Co. v. Ames A. Barlow.
    1. Insteuctions — Erroneous When Meaningless.— In an action against a street car company for personal injuries, an instruction which tells the jury “ that it is peculiarly their province to determine from all the evidence before them, whether the plaintiff was in the exercise of ordinary care under all the circumstances, and if the evidence shows that plaintiff had but a short time in which to determine as to what was best to be done, and had no time in which to deliberate as to the question of danger to himself, and that he was, as an ordinary and comm only prudent man, endeavoring to save his property from destruction, in short, to determine from all the evidence whether or not the plaintiff acted and did as an ordinarily prudent man might reasonably be expected to have acted and done under the circumstances,” is incomplete and meaningless, and is erroneous, as apparently seeking to determine the question of ordinary care on the part of the person injured solely by the length of time he had to deliberate as to the danger of his surroundings, leaving out altogether the question as to whether he was himself guilty of negligence under the circumstances of the case.
    2. Same — Permitting the Jury to Give Such Damages as They Think the Plaintiff Ought to Recover, Regardless of All Legal Rules Governing the Measure of Damages. — In an action for personal injuries, an instructinn which permits the jury to give the plaintiff such damages as they think he ought to recover, regardless of all legal rules governing the measure of damages, is erroneous, as giving the jury the privilege of awarding vindictive damages, which are improper under the declaration in this case.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Knox County; the Hon. GE0BG® W. Thompson, Judge, presiding. Heard in this court at the April term, 1901.
    Reversed and remanded.
    Opinion filed October 8, 1901.
    Cooke & Stevens, attorneys for appellant.
    J. A. McKenzie, attorney for appellee.
   Mr. Justice Higbbe

delivered the opinion of the court.

On October 22, 1900, appellee, who is a house mover, was engaged in moving a house on Monmouth Boulevard in the city of Galesburg. In carrying on his work he used a steel cable which was stretched from the south side of the street, where it was attached to the house being moved, to the north side, where it passed through a pulley attached to a telegraph pole, and from thence east on the north side of the street some 250 feet to a capstan. At the time in question appellant was operating street cars on said street and the cable necessarily passed across the street car tracks. Street cars passed the point in question every fifteen minutes. Appellee notified the president of the company of what he was doing and it was arranged between them that appellee was to cause his cable to be unhooked from the house and removed from the tracks whenever a car came along. This arrangement worked satisfactorily until about five o’clock in the afternoon. At that time appellee, with two of his three assistants, was under the house adjusting some of the moving apparatus when he was notified that a car was coming. He immediately went out and saw the car coming about 250 feet away. The motorman was talking to the conductor, with his face turned away from the direction in which the car was going. Appellee and" his third assistant, who was at work at the capstan, tried to attract the attention of the motorman by waving their hands and shouting to him, without avail. As the car approached nearer appellee took hold of the cable and shook it up and down in a further attempt to attract the attention of the motorman but the car came on rapidly and when it was within eight feet, .appellee, to save his cable, threw it up so that the front end of the car struck it. The cable was thrown violently against appellee, forcing him against some stone steps near by, the result being that his leg was broken and he was otherwise injured. He brought suit against appellant and recovered a verdict and judgment for $750.

This judgment must be reversed for errors in certain instructions given for appellee, and as a new trial will be necessary, we shall not here consider the evidence or its effect. Instruction Ho. 3 given for appellee was as follows:

“The jury are instructed that it is peculiarly their province to determine from all the evidence before them, whether the plaintiff was in the exercise of ordinary care under all the circumstances, and the jury are instructed that if the evidence shows that plaintiff had but a short time in which to determine as to what was best to be done, that he had no time in which to deliberate as to the question of danger to himself, that he was, as an ordinary and commonly prudent man, endeavoring to save his property from destruction, in short, to determine from all the evidence whether or not the plaintiff acted and did as an ordinarily prudent man might reasonably be expected to have acted and done under the circumstances.”

This instruction is incomplete, and it is evident that something was intended to be added to it. As it now reads it is in a measure meaningless. It, however, evidently intends to call attention toa particular part of the evidence, by way of argument, to the jury, as to the manner in which the question of ordinary care on the part of appellee was to be determined. It also apparently seeks to determine the question of ordinary care on the part of appellee solely bv the length of time he had to deliberate as to the danger v O O of his surroundings, leaving out altogether the question as to ivhether appellee was guilty of negligence in stretching his cable across the street or in his manner of operating it.

Instruction Ho. o given for appellee purports to state the rule governing the measure of damages applicable to the case. It concludes in the following manner: “In short, you should give just such damages as from the evidence you believe plaintiff ought to recover.” This sentence of the instruction permitted the jury to give appellee such damages as they thought he ought to recover, regardless of all legal rules governing the same.

It also gave the jury the privilege, if they so desired, of awarding vindictive or punitive damages to appellee, which was improper under the declaration in this case. The form of instruction here used has been frequently condemned by our courts. Keightlinger v. Egan, 65 Ill. 235; Waldron v. Marcier, 82 Ill. 550; I. C. R. R. Co. v. Creighton, 53 Ill. App. 45; La Porte v. Wallace, 89 Ill. App. 517.

For the reasons stated the judgment of the court below will be reversed and the cause remanded.


author: Mr. Justice Brown

text:
    Joseph Crudup v. Julia Schreiner, Ex’x, etc.
    1. Independent Contractors — Liability of, Under the Doctrine of Respondeat Superior. — A person can not be held liable as master under the doctrine of respondeat superior unless he has the power of discharge ing the party whose negligent act occasions the injury complained of.
    2. Master and Servant— The Power to Discharge, Test of the Master's Liability. — The liability of a master for the acts of his servant grows out of and is measured by the control of the former over the latter, and in the absence of such control the master will not ordinarily be liable for the acts or neglects of the employes of a sub-contractor when employed by such master to do a specified work.
    3. Same — Responsibility for the Tortious Acts of the Servant. — The responsibility of the master for the tortious acts of his servants grows out of, is measured by, and begins and ends with his control over them.
    4. Owner and Contractor— Application of the Rule of Liability.— The rule that an owner or contractor is not liable for the negligence of the servants of a sub-contractor, unless such owner or contractor has the power to discharge such servants and hire others in their places, is especially applicable to this case.
    Trespass on the Case, for personal injuries. Error to the Circuit Court of Rock Island County; the Hon. William H. Gest, Judge, presiding. Heard in this court at the October term, 1901.
    Affirmed.
    Opinion filed November 15, 1901.
    Searle & Marshall, attorneys for plaintiff in error.
    Joseph L. Haas, attorney for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

Joseph Crudup, plaintiff in error, seeks to recover from defendant in error, damages for personal injuries received, by reason of a fall alleged to have been occasioned by the negligent construction and maintenance by defendant in error’s decedent, C. J. W. Schreiner, of a scaffold, constructed, maintained and used in erecting a large store building in the city of Rock Island. At the close of all the testimony the trial court directed a verdict of not guilty, and entered judgment against the plaintiff for costs. Fries owned the building. Schreiner was the contractor and sublet the brick-work to Willis & Flack, who employed the plaintiff in error as a mason-tender. The scaffold was constructed by employes of Willis & Flack under their direction and for their exclusive use in doing the brick-work upon the building. The scaffold fell, resulting in injury to ■Crudup and death to Schreiner.

The contracts between Fries and Schreiner, and Willis & Flack and Schreiner, were in writing. The latter contract as as follows:

“Rock Island, June 1, 1897.
Agreement.
It is hereby agreed that Willis & Flack will do all the brick-work and. furnish all material for the same, including the furnishing of all terra cotta, copings and flue lining (for C. J. W. Schreiner), on Peter Fries’ new block and other store to be remodeled, to be occupied by Young & McCombs, all according to plan and specification. They will begin work in the cellar where part of the stone wall is up, and push wall to completion so that it will not delay any other mechanic on this building — all for the sum of twenty-four hundred and eighty-two ($2,482) dollars. Willis & Flack further agree to carry out this sub-contract on above named work under the same conditions, and semimonthly payments, as are named in the Schreiner and Fries contract. All to be clone tb the satisfaction of the architect and owner.
Willis & Flack, Per Willis.
Accepted :
C. J. W. Schreiner.”

All that is material of the contract between Fries and Schreiner is the following paragraph:

“ The contractor must personally superintend the whole of this work at all times in every detail-or appoint a competent foreman to represent him, to whom all necessary orders may be given, from time to time, during the progress of the work.”

The principal question is, were Willis & Flack independent contractors. If they were, they, not the representative of Schreiner, are liable, if a cause of action arises from the facts.

Consttuing the two contracts together the most that can be said is that Schreiner was the superintendent of the ivork of Willis & Flack. He had no power to hire or discharge their men.

We are of opinion that Willis & Flack were independent contractors and that the action can not be maintained against the defendant in error. One can not be held liable as master under the doctrine of respondeat superior, Avho does not have the power of discharging the party whose negligent act occasioned the injury. Pioneer Construction Co. v. Hansen, 176 Ill. 100.

In Thompson on Negligence, Vol. 2, Sec. 12, the following rule is laid doivn: The right to control the conduct of another implies the power to discharge him from the service or employment for disobedience; and accordingly, the power to discharge is said - to be the test by which to determine ivhether the relation of master and servant exists. The liability of a master for the acts of his . servants grows out of, and is measured by, the control of the former over the latter; and for the want of such control the principal will not ordinarily be liable for the acts or neglects of the employes of a sub-contractor employed by him to do a specified ivork. Town of Pawlet v. The Rutland & Washington Railroad Company, 28 Vt. 297.

The responsibility of a master for the tortious acts of his servants arises, grows out of, is measured by, and begins and ends with his control over them. McGuire v. Grant, 25 N. J. L. 356. It is contended by plaintiff in error that the contract between Schreiner and Willis & Flack could be varied by parol; that the rule that a written contract can not be altered or varied by parol evidence applies only to parties to the contract.

The trial court evidently took that view of the law, and at the instance of the plaintiff in error, admitted oral testimony tending in some respects to vary the terms of the written contract.

This proof, at the most, only showed that Schreiner at some times exercised more authority than the written contract gave him. The test is what authority he had, not what he- attempted to exercise.

The oral testimony failed to show any authority or attempted-authority on the part of Schreiner to hire or discharge servants for Willis & Flack and it fails to show that Willis & Flack ever discharged a servant because demanded or requested by Schreiner.

The rule that the owner or contractor is not liable for the negligence of the servants of the sub-contractor, unless he has the power to discharge such servants and hire others in their places is especially applicable here. This injury seems to have been caused, not by any weakness or lack of size of the timbers, or any lack of proper form which supervision could have prevented, but by the negligence of the servants of Willis & Flack in driving certain nails into cracks instead of driving them into solid wood. When the weight came upon the scaffold these nails pulled out and the scaffold consequently fell.

As Schreiner had no authority to hire or discharge the servants who committed the error, he ought not to be held responsible for their carelessness and neglect.

The judgment of the Circuit Court will be affirmed.


author: Mr. Justice Higbee

text:
    S. S. Boon v. The Estate of Edmund Bliss, Deceased.
    1. Payments — Burden of Proving. — The burden of proving a payment is upon the party claiming it, and he is required to do so by the preponderance of the evidence.

      2. Instructions — Allowing the Jury to Speculate upon Probabilities. — In the trial of a claim against the estate of a deceased person for services rendered, where the defense of payment is urged, an instruction stating that “while it is true that the burden of proving payment is upon the defense to establish the fact, still that does not mean that the defence is required to specifically prove the items or amounts of any or all such payments — it is sufficient, if from all the evidence the jury believe it is more probable that such payments were made than that they were not made,” is erroneous and should not be given.
    3. Same — Inferences Outside of the Evidence. — On the trial of a claim against the estate of a deceased person for services rendered by the claimant, an instruction telling the jury that they must be governed by the evidence of witnesses and facts and circumstances proven on the trial, and that on the one hand they might infer from the evidence that more work was done by the claimant than was specifically proven by witnesses who saw him do it, so on the other hand they might infer from the evidence that more payments were made by the deceased than the testimony of witnesses specifically proves to have been made, is manifestly improper, as from it the jury might easily have been led to believe that they were not limited by the proof as to the work done or payments made.
    Claim in Probate. — Appeal from the Circuit Court of DeKalb County; the Hon. Charles A. Bishop, Judge, presiding. Heard in this court at the October term, 1901.
    Reversed and remanded.
    Opinion filed November 15, 1901.
    W. C. DeWolf and Thomas M. Cliffs, attorneys for appellant.
    Carnes & D unton and Jas. FT. Finnegan, attorneys for appellee.
   Mr. Justice Higbee

delivered the opinion of the pourt.

This proceeding is based upon a claim filed by appellant in the County Court of DeKalb County, February 1, 1901, against the estate of Edmund Bliss, deceased.

Edmund Bliss died October 23, 1900, and the itemized statement of account shows that the claim was for “ work, care, nursing, attention, labor performed and services rendered ” to said Bliss and his wife from October 1, 1895, to December 26, 1897, and for like services rendered Bliss alone from said last named date until his death. Appellant’s charges for said services amount to $2,400, but he gave credit for $105 cash paid at various times, leaving a balance claimed to be due him of $2,295. There was a verdict and judgment in the County. Court in favor of appellant for $825, from which both parties appealed to the Circuit Court. The trial in that court resulted in a verdict in favor of appellant for $350, for which amount, a motion for a new trial having been overruled, judgment wras entered. From that judgment Boon appealed to this court.

Appellant insists that the judgment in this case should be reversed for the reason, as alleged, that the verdict was contrary to the evidence, and because the court refused to admit proper evidence offered on behalf of appellant and gave improper instructions on behalf of appellee.

Deceased, Edmund Bliss, for some years prior to his death, lived in the village of Kirkland, DeKalb county, haxdng formerly lived on a farm' near that place. His family, during a greater portion of the time covered by the bill in question, consisted of his wife and himself. Appellant, who was a near neighbor, frequently performed services for Mr. Bliss during the last five years of his life. During this time Mr. Bliss paid appellant .$105. It is claimed on behalf of the estate that the services performed by appellant were neighborly acts, for which he never intended to charge, and that if they were not gratuitous, appellant had been paid in full the value of his services. That services were performed by appellant for deceased was unquestioned, but as to whether or not they were gratuitous, and if not, the value of the same, were questions upon which there was a sharp conflict of the evidence. Upon these questions we express no opinion, as for other reasons the case must go back to the Circuit Court for another trial.

On the trial appellant offered in evidence the files of the County Court of DeKalb County in the matter of the estate of Edmund Bliss, deceased, including his last will and testament, but upon objection of counsel for appellee, the court refused to admit the same in evidence. We can not agree to the claim of appellant that these papers, especially the will, would have been material in determining either the value of the services rendered by appellant, or whether or not they were gratuitous. We are of opinion that the papers could have no bearing upon that subject and that the court properly refused to admit them.

Appellant sought to interrogate the witness Thomas Humphrey, as to the contents of the will, and particularly as to whether any provision was made therein for Humphrey. These questions the court, upon objection, refused to permit Humphrey to answer, and appellant complains upon the ground that the answers would have shown whether or not Humphrey had any interest in the event of this suit. Later on, however, Humphrey was permitted to testify, without objection, that he was the person who was to take the remainder of the estate, after the life estate of Mrs. Bliss expired and certain specific legacies were paid. All that appellant was entitled to show by the witness was his interest in the estate under the will, and that was fully-explained by his answers to subsequent questions.

Instruction Ho. 2, given for appellee, was as follows:

“You are further instructed that it is claimed by the defense in this case that whatever services wrere performed by the claimant for the deceased, were settled for in the lifetime of the deceased; .that while it is true that the burden of proof is on the defense to establish that fact, still that does not mean that they are required to specifically prove the items or amounts of any or all such payments. It is sufficient if from all the evidence, you believe it is more probable that such payments were made, than that they were not made.”

The particular vice of this instruction is in the last sentence. In reference to an instruction containing a similar statement as to the lawr, our Supreme Court said in the case of Warner v. Crandall, 65 Ill. 195:

“ The last clause of the third instruction given for plaintiff, to wit, 1 and if the jury consider it more probable, from all the facts and circumstances as shown by the evidence, that the contract was that such work was to be paid for by Warner & Edwards, then the jury should so find,’ was also objectionable. The jury should not have been left at liberty to speculate on probabilities but should have been satisfied by the greater weight of evidence that Warner & Edwards, and not Edwards and Woods, were to pay for the work in question.”

The burden of proving payment for the services mentioned by the claimant was upon the defense in this case and to establish that fact the defense should have been required to prove such payment by the preponderance of the evidence, and the jury should not have been authorized to speculate in regard to the probability as to whether such payment had or had not been made. The instruction was therefore erroneous and should not have been given.

Instruction Mo. 5, given for appellee, referred to the question of the amount and value of the services rendered deceased by appellant and whether those services had been paid for, and told the jury “you must be governed by the evidence of witnesses and facts and circumstances proven on the trial; that on the one hand you may infer from the evidence that more work w7as done by the claimant than-was specifically proven by witnesses that saw him do the work, and on the other hand you may infer from the evidence that more payments were made by Edmund Bliss than testimony 'of witnesses" specifically proves to have been made.”

It is claimed by appellee that the object of this instruction was to tell the jury simply that they could consider circumstantial evidence. The instruction was manifestly improper, however, as from it the jury might easily have been led to believe that they were not limited by the proof as to the work done by or payments made to appellant.

For the reasons above given the judgment of the Circuit Court will be reversed and the cause remanded.


text:
    Clement Curtis v. Fred Wagner.
    1. Real Estate Agents— When Not Entitled to Commissions.— Where the owner of a tract of land, a German, and unable to distinctly understand the language, entered into a written contract in English, with a real estate agent, agreeing to grant him the sole agency to sell the property upon the terms in it described, and after some difficulty in trying to make him understand the contract at the time it was signed, the agent told him if he found a buyer himself, he, the agent, was to have ño commissions, and subsequently the owner found a buyer and effected a sale of his land without the assistance of the agent, it was held that the agent was not entitled to a commission.
    Assumpsit, for commissions upon the sale of real estate. Appeal from the Circuit Court of La Salle County; the Hon. Harvey M. Trimble, Judge, presiding. Heard in this court at the April term, 1901.
    Affirmed.
    Opinion filed October 8, 1901.
    Fowler Bros, and B. F. Brady, attorneys for appellant.
    Charles S. Cullen, attorney for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellant brought suit against appellee to recover $200 claimed by him as commission upon the sale of the latter’s farm. In the Circuit Court, to which the case came by appeal, a jury was waived and the court found for appellee, giving judgment against appellant for costs. Ho propositions of law were presented to be passed upon by the trial court, but appellant insists that the finding and judgment of the court were not sustained by the evidence.

Appellant introduced -in evidence the following instrument in writing, signed by appellee :

“Triumph, III., May 4, 1900.
I, Fred Wagner, owner of the hereinafter described property, do hereby agree to grant to Clement Curtis the sole age"ncy to sell the property hereinafter described, upon the terms hereinafter mentioned; and if a sale is made or a purchaser secured, according to the terms hereinafter named, or a purchaser secured or a sale made at any other terms which may hereafter be authorized or accepted by me, I agree to pay to said Clement Curtis a cash commission of $200 out of the first payment upon said land, and I agree to give Clement Curtis aíl over the said price that he gets.”

The above was followed by a statement of the terms and description of the property and was signed by appellee. Appellee testified that appellant prepared the agreement and that he, appellee, commenced to read it but that being a German he could not read it very fast, so appellant took it and read it so rapidly that he could not follow it. Appellant testified in reference to a conversation with appellee at the time the contract was signed, “ [ told him if he found a buyer and I did not have anything to do with it, I would not charge him any commission.” Appellee swore, in substance, that it was agreed between them at the time, that if he sold the premises himself, appellant was to have no commission. Appellee further testified that he supposed the contract reserved the right for him to sell the farm without the payment of any commission to appellant. On May 30, 1900, the premises were sold to Adam Stevenson, and appellant claims to have brought about the sale. Stevenson testilled that he knew the farm was for sale before appellant did and informed him of that fact. Both Stevenson and appellee swear that the sale was brought about without the assistance of appellant in any manner. Stevenson in fact swears that appellant delayed the sale by professing to have another purchaser, named Landers, in view, and that he, Stevenson, refused to complete the trade until the negotiations with Landers were ended. Appellant alone swears to facts tending to show that he brought about the sale.

It appears from the preponderance of the evidence that the sale of the premises was effected by appellee without the assistance of appellant and that the latter is not entitled to the commission claimed by him.

It also appears that before the sale to Stevenson was made appellant claimed to have found a purchaser for the place in the person of Landers. He insisted that appellee should pay him his commissions upon the sale and placed his claim in the hands of Mr. Brady, his attorney, who wrote appellee demanding the commission for appellant for making the sale. Appellee swore that after receiving this letter, he had a conference with Mr. Brady, as attorney for appellant, and then and there offered to convey the land to Landers if the latter would comply with the terms of sale named in said written instrument, but that such terms were not complied with. Appellant objected to the admission of this testimony but the objection was overruled and an exception taken. Appellant now claims that the court erred in admitting the testimony. As Brady was the attorney for appellant and was representing him in an attempt to collect the claim against appellee, we think the evidence was entirely proper and that there was no error in admitting it. The court properly found in favor of appellee and the judgment against appellant must be affirmed.


text:
    Anna May Russell v. The Chicago & Milwaukee Electric Ry. Co. and The North American Ry. Construction Co.
    1. Chancery Practice — Where a Decree is Based upon Evidence Not Incorporated in the Record.— Where the evidence upon which a decree is based is not incorporated in the record the facts recited in the decree must be taken as true; and if the findings of the decree are sufficient, it must be sustained; if not. it must fall.
    2. Same — Directing Feigned Issues. — Where a court of equity directs a feigned issue to be made the order directing it should provide that such issue be tried by a jury unless the parties waive the jury and elect to try it by the court.
    3. Eminent Domain — Condemnation Proceedings — By Whom to be Instituted. — In a proceeding by the owner of real estate against an electric railway company to enjoin it from constructing its road upon his premises a decree ordering him to institute proceedings to have his damages ascertained is improper, as such proceedings, must be instituted by the railway corporation in the manner required by the statute providing for the exercise of eminent domain.
    Bill for an Injunction. — Appeal from the Circuit Court of Lake County; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the October term, 1900.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed October 8, 1901.

      Bowen W. Schumacher, attorney for appellant.
    Wood & Oakley, attorneys for appellees.
   Mr. Justice Higbee

delivered the opinion of the court.

This was a bill in chancery filed in the Circuit Court of Lake County on May 19, 1899, by Anna May Bussell against the Chicago and Milwaukee Electric Bail wav Company and the Borth American Bail way Construction Company, praying for a temporary injunction restraining the defendants • from constructing an electric street railway and certain trestle work and from cutting trees and erecting telegraph poles in front of complainant’s premises, upon what was known as Bailroad avenue. The bill also asked that upon a final hearing said Chicago & Milwaukee Electric Bailway Company be perpetually enjoined from the further construction of said proposed work and from operating and maintaining a system of electric railways over said so-called Bailroad avenue in front of complainant’s premises, which alleged street in front of her premises complainant claimed to own, and that defendants be required to remove the obstructions theretofore placed by them in said alleged street and to restore the latter to its former condition. A temporary injunction was granted in accordance with the prayer of the bill. Afterward, on June 7, 1899, the injunction which had extended over the full width of the strip of land known as Bailroad avenue, which was sixty-six feet, was dissolved as to the west thirty-three feet thereof, upon defendants giving bond in the sum of $5,000 conditioned for the payment of the amount of any judgment or decree or the award of any arbitrators that might be entered against them in favor of complainant for damages caused by the use of the west thirty-three feet of said Bailroad avenue, opposite complainant’s premises. Defendants having afterward filed an answer to the bill, and complainant her replication thereto, a hearing was had, and on March 6, 1900, a decree was entered from wdiich this appeal is taken.

The evidence upon which the decree in this case is based, is not incorporated in the record by means of a certificate of evidence, and consequently the facts recited in the decree must be taken as true. If the findings of the decree are sufficient it must be sustained; if not, it must fall.

The decree in this case was a very lengthy one and contained findings on many different questions. It is sufficient to say here, however, that it found that appellant was the owner of lots 151,152 and 153 of South Highland addition to Highland Park in Lake county; that said lots faced and abutted upon what was known in the plat of said addition, recorded in the office of the recorder of said county of Lake, as Bailroad avenue; that said avenue was sixty-six feet in width; “that complainant acquired title to the fee of the east thirty-three feet of that property described in said map or plat as Bailroad avenue, subject to any easement that the public or town authorities might acquire therein, by reason of said real estate being platted as a street, should the public or town authorities choose to accept said dedication, and said complainant also acquired title to the fee of the whole of said street in front of said lots, subject as aforesaid to any rights the public or town authorities or the owners of the other lots in said'subdivision may have therein, by reason of said map or plat, should the public or town authorities choose to accept the dedication made by said plat and use the same for a public street;’’ that said Bailroad avenue “had never been recognized or accepted as a public highway by the public authorities of the town of Deerfield, or the town of East Deerfield, or the city of Highland Park, and that the only work done or repairs made therein had been done and made south of Boger Williams avenue and that the complainant herein, Anna May Bussell, on account thereof, owned the fee to the whole of said Bailroad avenue in front of her said lots, subject, however, to the rights of the public to accept said so-called Bailroad avenue as a street, should they wish to do so.” The decree thereupon proceeded to direct that an issue be made and the following questions determined by a jury; first, the value of the west twenty-five feet of Bailroad avenue in front of the premises in question, the title of which, for the purpose of this suit, was held to be in complainant; second, the damages to the premises in question which they have sustained or may sustain by reason of the construction, maintenance and operation of the said electric railroad on the west twenty-five (25) feet of Railroad avenue as aforesaid; and that a single money judgment be entered in accordance with the verdict of the jury. It was further ordered that appellant proceed to have her damages so ascertained within six months, and that in case the appellee railway company failed to pay the money judgment so to be awarded against it within thirty days after the rendition thereof, that the injunction prayed for by appellant should be granted and made perpetual.

The court found that the Chicago & Milwaukee Electric Railway was a corporation organized for the purpose of locating, constructing and operating a s}rstem of street railways in the townships, cities and villages of the county of Lake and county of Cook.

In the case of Harvey v. The Aurora and Geneva Ry. Co., 174 Ill. 295, which was an appeal by the property owners from a judgment in condemnation proceedings, on the ground that appellee, being a street railroad, has no right, under the circumstances of the case, to condemn, the court says:

“There is a wide and well understood difference between a railroad organized for general traffic, and a street, horse or dummy railroad. * * * It is clear that section 2 of the act of 1874 confers power upon a street or horse and dummy railroad company to take private property, but the power is a limited one, as is apparent from the language of the section. It declares : ‘When it is necessary for the construction, maintenance or operation of such road, or the necessary sidings, side tracks or appurtenances, to take or damage private property, the same may be done.’ * * * It thus appears that the managers of the street railway company abandoned the highway a.nd undertook to construct their line of road over private property, when it was not necessary to do so in the construction, maintenance or operation of the road. This they had no right to do. In the construction of the road, if a necessity existed for making a, deflection from the high way in order to avoid a heavy grade 'which would prevent a successful operation of the road, defendant in error would no doubt have the right to take and condemn private property to obviate the difficulty.”

When this case again came before the Supreme Court in the case of The Aurora & Geneva Railway Co. v. Harvey, 178 Ill. 477, the court, in speaking of the section of the statute last above referred to, said:

“ In the construction of statutes relating to the taking of private property the word 1 necessary ’ should be construed to mean 1 expedient,’ ‘ reasonably convenient,’ or ‘ useful to the public,’ and can not be limited to an absolute physical necessity. This, we think, was certainly the intention of the legislature when the act was passed.”

The court found in this case that appellant was the owner in fee of the strip of land in question and that the same was not a street or highway. Therefore by authority of the cases above named the railway company could, by showing the necessity, as that word is construed by the opinion last above referred to, condemn the strip. It does not appear from the decree, however, that any such showing was made or that there was any attempt on the part of the railway company to condemn before taking the property. The decree, in effect, ordered appellant to institute the proceedings to have her damages ascertained. This was improper, as by law such proceedings must be instituted by the railway corporation in the manner provided for the exercise of eminent domain. Rev. Staff, Chapter 47, Section 2.

The decree also provided that the issue to be made up should be tried by a jury or by the court as the parties should elect. This would seem to require an agreement of the parties as to the manner of trial before further proceedings could be had. We are of opinion that the decree should have provided that the issue be tried by a jury unless the parties should waive the jury and elect to try it by the court.

For the reasons above given the decree will be affirmed except as to the provision requiring appellant to institute proceedings to have her damages ascertained and the provision requiring the issue to be tried by a jury or by the court as the parties should elect. In these respects the court below is directed to modify the decree so as to provide that the proceedings to condemn be instituted by the railway company, and that the issue to be made up be tried by a jury unless the parties waive a jury and elect to try it by the court.

Appellant will be required to pay two-thirds and appellee one-third of the costs in this court.

Affirmed in part, reversed in part, and remanded with directions.


author: TVTr.. Presiding Justice Dibell

text:
    Lena Mackay Jack v. Thomas Rowland.
    1. Evidence — Production of Written Instruments — Parol Proof.— In an action upon a written instrument, the instrument itself is the best evidence of its provisions, and parol proof of its contents can not be heard unless there is preliminary proof of its loss or destruction, or, if it is in the possession of the opposite party, reasonable notice has been given to produce it.
    3. Notice — To Produce Written Instruments — Parol Proof, When Inadmissible. — In tlie trial of a suit, the plaintiff’s proofs showed that there was a written contract between the parties covering the subject-matter of the suit and that it was in the possession of the defendant; the plaintiff then gave the defendant’s counsel notice to produce it. To this the counsel replied that he had never heard of the written contract and had no knowledge whether or not there was one; that his client was out of the State and if there was such a contract he did not have it, and was unable to produce it. The plaintiff then proved that a scrivener drew one copy of a contract, which the parties executed and left it with him that he might draw a duplicate; 'that he afterward did so and gave both copies to the defendant; that some ten months before the suit was begun the defendant had been asked for one copy of the contract both by the scrivener and by the plaintiff, and had refused to deliver it. Whereupon the court, over the objections of the defendant, admitted parol proof of the provisions of the contract. Held, that the court erred in admitting such proof.
    8. Same — To Produce Written Instruments, Given at the Bar. — A notice given at the bar during the progress of a trial, to produce an instrument, is not sufficient, unless it appears satisfactorily that such instrument is in court at the time and is in the possession of the party upon whom the demand is made, or if elsewhere, that it is of easy access.
    4. Same — Not Sufficient When Given at the Circuit. — At the Circuit Court, when in session, a party litigant has no right to call upon his opponent to produce documents, the production of which will require him to travel a distance to procure them, for it is unreasonable to impose upon such party the trouble and expense of sending for documents, which, had his adversary exercised ordinary diligence, might have been avoided.
    Assumpsit, on appeal from a justice of t he peace. Appeal from the Circuit Court of Carroll County; the Hon. James Shaw, Judge, presiding. Heard in this court at the October term, 1901.
    Reversed and remanded.
    Opinion filed November 15, 1901.
    B. F. Lichtenbergér, attorney for appellant.
    Benner & Smith, attorneys for appellee.
   TVTr.. Presiding Justice Dibell

delivered the opinion of the court.

In this suit Thomas Bowland recovered against Lena Mackay Jack a verdict and a judgment for $104.83 on a trial in the Circuit Court, on appeal from a justice. On the trial plaintiff’s proofs showed there was a written contract between the partiés covering the subject-matter offfhe suit, and that it was in the possession of defendant. Plaintiff then gave defendant’s counsel notice to produce the contract. To this defendant’s counsel replied that he had never heard of the written contract, and had no knowledge whether there was one or not; that his client was out of the State, unless she was in the State attending her sister’s funeral, and if there was such written contract he did not have it, and was unable to produce it. Plaintiff then proved that a scrivener drew one copy of a contract, which the parties executed and left with him that he might draw a duplicate; that he afterward did so, and gave both copies to defendant; that some ten months before this suit was begun defendant had been asked for one copy of the contract, both by the scrivener and by plaintiff, and had refused to deliver it. Thereupon the court, over objections by defendant, permitted parol proof of the provisions of the contract.

Defendant did not appear in person or by counsel at the • trial before the justice. There was nothing in the transcript of the justice to show the suit was based upon a written contract. There is a bill of particulars in the record, but it does not indicate that recovery was sought upou a written contract, but the natural inference therefrom is to the contrary. The writing itself is the best evidence of its provisions, and parol proof of its contents can not be heard unless there is preliminary proof of its loss or destruction, or if it is in the possession of the opposite party, reasonable notice has been given to produce it. (Trustees v. Shaffer, 63 Ill. 243.) Where the paper was in New York, notice to the attorney a day or two before the trial; was held insufficient to authorize parol proof of its contents, in Bushnell v. Bishop Hill Colony, 28 Ill. 204. In Atwell v. Miller, 6 Md. 10, 61 Am. Dec. 294, it is said:

“ Notice given at the bar during the progress of the trial, to produce a paper, is not sufficient, unless it appears satisfactorily that the paper is in the court at the time, and in possession of the party upon whom the demand is made, or if elsewhere, that it would be of easy access.”

In Gorham v. Gale, 7 Cow. 739, 17 Am. Dec. 549, notice was given after the term began, but before the trial, to produce an execution which was twenty miles distant. The court said:

“I-do not think that at the circuit one party had a right to call on the other to produce documents, the production of which will require him to travel a distance to produce them; and when, for aught that appears, during the interval the cause maybe ordered for'trial. Besides, it is unreasonable to impose on the defendant the trouble and expense of sending for a paper which, had the other party exercised ordinary diligence, might have been avoided. If the execution was really a necessary part of the plaintiff’s proofs, he was guilty of laches in not having given the notice somewhat earlier. No cause is assigned for the omission, and under the circumstances the parol evidence should have been excluded.”

The foregoing cases state the rule usually prevailing. One exception is that where the pleading has alleged the opposite party has possession of the document sued upon, no further notice to produce it is necessary. (1 Rice on Evidence, 160.) Here, as already shown, the record conveyed no such notice to defendant. It is, however, argued that the general rule above stated does not apply where the party notified to produce the paper, has wrongfully obtained possession of the paper and wrongfully retained it. But defendant had no notice that any such question was to be litigated at this trial. It may be, if defendant had been duly notified, she could have shown she did not wrongfully receive or retain the paper. The previous effort to procure it from her had no reference to this law suit, for that was some ten months before this suit was begun, and before most of the services were rendered upon which the suit was based. Ho reason appears why plaintiff could not have given defendant’s attorney such reasonable notice to produce the paper at the trial as would have enabled him to produce it or to deny its existence or validity. We are of opinion the court erred in admitting parol proof of the written contract. It is due to the trial judge to state that he at first held the proof incompetent and repeatedly announced the correct rule, and only yielded to the importunities of plaintiff’s counsel.

Moreover the verdict exceeds the amount claimed in the bill of particulars, and exceeds the sum warranted by the proofs.

The judgment is reversed and the cause remanded.


author: Mr.- Presiding Justice Dibell

text:
    Village of North Peoria v. Electa Rogers.
    1. Practice — A Count to Which a Demurrer is Sustained is out of the Case. — For the purposes of the trial a count of a declaration to which a demurrer has been sustained is no longer a part of the declaration, and a reference in the instructions to such declaration, or to the several counts of it, must be understood to mean the counts upon which issues of fact are joined.
    3. Same — Right of the Jury to Take Pleadings to Their Room. — A court has the right, if requested by the parties, to allow the jury to take the pleadings to their room with them when they retire to consider of their verdict, but this rule does not include pleadings which have been eliminated by a demurrer and the court should not permit such eliminated pleadings to go to the jury.
    8. Photographs — When Used in Evidence Should he Incorporated into the Record. —In cases where photographs are used in evidence on the trial of the case and such case is taken to a court of review, such photographs should be incorporated into the record.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Peoria County; the Hon. Leslie I). Puterbaugh, Judge, presiding. Heard in this court at the October term, 1901.
    Affirmed.
    Opinion filed November 15, 1901,
    Henry Mansfield, City Attorney, and Jos. Wilhelm, attorneys for appellant.
    W. Gr. MoBoberts and Arthur Keithlet, attorneys for appellee.
   Mr.- Presiding Justice Dibell

delivered the opinion of the court.

In this action for injuries received upon a sidewalk in the village of Horth Peoria, Electa Bogers, the plaintiff, recovered a verdict and judgment for $500, from which the village appeals. It is clear from the proof that plaintiff was injured upon the sidewalk in- question; that $500 is not excessive compensation for her injuries; that the condition which existed at the time plaintiff was hurt had continued so long prior thereto as to amount to constructive notice thereof; and also that the board of trustees of the village had actual notice thereof before the injury.

There is no particular disagreement in the proof as to the condition of the sidewalk which caused the injury, but the village claims that condition was such as it had a right to maintain, and was not a lack of proper repair. This was a question for the jury and we do not feel justified in disturbing their conclusion, especially as two photographs of the walk, in evidence and submitted to the jury, are not included in the record before us. The accident occurred at half past nine o’clock in the evening, and plaintiff had never passed over that place before. There was a street light some distance away, but this particular spot in the walk was in the shadow of a tree. The jury found plaintiff was exercising due care, and the proof would not warrant our disturbing that conclusion.

' The fourth instruction given for plaintiff was defective in not submitting to the jury the question whether the walk was out of repair. It virtually assumed it was out of repair. But the defendant requested and obtained from the court several instructions, including the third, fourth and seventh, which contained the same assumption, and it can not be heard to complain of a position into which it assisted in leading the court. (Consolidated Coal Co. v. Haenni, 146 Ill. 614, 621; Peirce v. Walters, 164 Ill. 560; Egbers v. Egbers, 177 Ill. 82; I. C. R. R. Co. v. Anderson, 184 Ill. 294, 305; Ill. Steel Co. v. Novak, 184 Ill. 501.) Besides, plaintiff’s second instruction did submit to the jury the question whether the walk was unsafe or dangerous, and several instructions given for defendant told the jury plaintiff must prove by the greater weight of the evidence the negligence charged in the declaration, and from the whole course of the trial we think the jury must have understood plaintiff could not recover unless it was shown by a preponderance of the evidence that the walk was out of repair.

The fifth instruction for plaintiff told the jury that if they believed from the evidence that defendant was guilty of the negligence complained of in one or more counts of the declaration, and that plaintiff was thereby injured as charged in the declaration, without her fault, then they should find for plaintiff. It is argued this permitted a recovery upon counts to which a demurrer had been sustained. This position is not well taken. A demurrer was sustained to the first count, and to an amended first count. Defendant then filed a second amended first count. Issues of fact were joined upon it, and upon the second original count. For the purpose of a trial, a count to which a demurrer has been sustained is no longer a part of the declaration. A' reference in the instructions to the declaration or to the several counts thereof must be understood to mean the counts upon which issues of fact were joined, and upon which the trial is had. This is especially so where, as here, an amended count has in effect been substituted for the original. There is nothing to show that the trial court permitted any proof under, or reference before the jury to, the counts to which demurrer had been sustained. The court had the right, if requested by the parties, to allow the jury to take the pleadings when they retired (City of East Dubuque v. Burhyte, 74 Ill. App. 99, 173 Ill. 553), but the rule does not include pleadings which have been eliminated by demurrer. The court should detach them and not permit them to go to the jury. This record does not show that any part of the declaration went to the jury in this case. (North Chicago St. R. R. Co. v. Hutchinson, 92 Ill. App. 567.) Defendant, if it had desired, could have had an instruction to the jury that the first and amended first count were not before them. The case cited, Grand Tower M. & T. Co. v. Ullman, 89 Ill. 244, where the court gave instructions which permitted a recovery upon bad counts on which issues of fact had been joined, is not in point. (H. S. Rolling Stock Co. v. Chadwick, 35 Ill. App. 474.)

The judgment is affirmed.


author: Mr.. Presiding Justice Dibell

text:
    City of Elgin v. Kate Thompson.
    1. Cities and Villages — Negligence in Unnecessarily AUoxoing a Steam Roller to Remain in the Street. — Unnecessarily allowing a steam roller to remain in a street as an object calculated to frighten ordinarily gentle horses after the street is substantially finished and open to public travel and its use on the street ended, it being simply stored there until wanted elsewhere, and the city officers notified that as so stored it was frightening horses, is sufficient to render the city liable for damages resulting from the frightening of horses by such roller.

      2. Same — Dufy of Keeping the Streets in Suitable Condition.— It is the right and duty of a, city to use reasonable care to put its streets in suitable condition for public travel, and it has the right to use the best appliances for that purpose, but in so doing it must use such reasonable care as the circumstances will permit to avoid injury therefrom to the traveling public while the street is being improved.
    3. Same — Right to Use a Steam Roller. —A city, as well as its contractors, has the right to use steam rollers with due care in improving streets, and also the right to temporarily leave such rollers properly guarded, in some appropriate place on the street, while the work progresses.
    4. Evidence— That Other Horses Were Frightened by the Steam Roller in the Street, Competent. — In an action against a city for personal injuries resulting from the frightening of a horse by a steam roller, evidence that other horses were frightened by the sight of such róllelas it stood in the street, is competent as tending to show that it was dangerous and unsafe.
    5. Waiver — 0/ a Motion to Exclude Evidence. — A motion by a defendant at the close of the plaintiff’s case to exclude the testimony, is waived by the act of such defendant in subsequently offering evidence in his own behalf.
    6. Same — Of Grounds of Error Not Stated in His Motion for a New Trial. — By filing points in writing particularly specifying the grounds of his motion for a new trial the defendant waives all reasons not so specified.

      7. Pleading — Defects Cured by the Verdict. — In an action for personal injuries, where there is in the declaration a defect or omission in form or substance which would have been fatal on demurrer, if an issue joined upon it is such as necessarily requires proof of the matters defectively stated or omitted, without which it can not be persumed that the judge would direct, or the jury would return a verdict, such defect or omission is. cured by the verdict.
    Trespass on the Case, for personal injuries. Appeal from the City Court of Elgin; the Hon. Russell P. Goodwin, Judge, presiding. Heard in this court at the April term, 1901.
    Affirmed.
    Opinion filed October 8, 1901.
    Charles H. Fisher and J. M. Manley, attorneys for 'appellant.
    Egbert S. Eagan and John E. Powers, attorneys for appellee.
   Mr.. Presiding Justice Dibell

delivered the opinion of the court.

Ethel Magnus, between fourteen and fifteen years of age, was driving her father’s horse and buggy in the city of Elgin, on Sunday afternoon, July 1, 1900, and had with her Kate Thompson, nineteen years of age. A steam roller stood on the west side of South Liberty street just south of Chicago street. As they approached it the horse took fright at the roller, turned around quickly, tipped over the buggy and ran. Miss Thompson was injured and brought this suit against the city of Elgin to recover damages therefor. The declaration contained two counts. Defendant pleaded not guilty, and there was a jury trial. $At the close of plaintiff’s evidence defendant moved to exclude the testimony and presented an instruction to find defendant not guilty. The court denied the motion and refused the instructions, and defendant excepted. The same course was pursued at the close of all the evidence!} The jury awarded plaintiff $175. (Motions for a new trial and in arrest of judgment were made by defendant and denied, and plaintiff had judgment on the verdict. Defendant appeals!

It is argued the court erred in permitting plaintiff to prove that other horses were frightened by the sight of the roller as it stood in the street. The competency of such proof as tending to show that the common cause is dangerous and unsafe, must be regarded as settled for this State by City of Chicago v. Powers, 42 Ill. 169; City of Bloomington v. Legg, 151 Ill. 9; Fraser v. Schroeder, 163 Ill. 459.

(The motion and instruction presented by defendant at the close of plaintiff’s proof, were waived by defendant when it thereafter offered proof on its own behalfj (Gilbert v. WattsDeGolyer Co., 169 Ill. 129.) The motion at the close of all the proof, was to exclude plaintiff’s evidence. It was claimed that there was a variance between the proof and the second count as to the place where plaintiff" was driving when the horse took fright. The second count did charge plaintiff Avas passing along Chicago street, and this was not true; but that count also alleged the roller stood on South Liberty street, and that when at or near said roller the horse became frightened, and overturned upon said South Liberty street the vehicle in Avhich plaintiff was driving, etc., so that there was no substantial variance in that respect. It was also urged in support of said motion that plaintiff’s proof did not show she was in the exercise of ordinary care, or that defendant did anything or failed to perform any duty-imposed upon it by law which caused the accident. The proof on these subjects was conflicting, and the court did not err in denying the motion and refusing the instruction then offered.

It is argued the court erred in refusing certain instructions offered by defendant as to the right of the city to stand a steam roller in a public street, both generally, and also while repairs upon the street are in progress which require the use of the roller. ÍThe defendant filed its written reasons for a new trial, and the only reference therein to instructions offered by defendant was that the court erred in refusing the first and second instructions offered by defendant. This referred to the instructions offered at the close of plaintiff’s evidence and at the close of all the evidence, already discussed!] The court gave the first and second instructions requested by the defendant after the two just mentioned. (By filing points in writing particularly specifying the grounds of its motion for a new trial defendant waived all reasons not enumerated!) (West Chicago St. R. R. Co. v. Krueger, 168 Ill. 586.) Therefore defendant’s assignment here, that the court erred in refusing defendant’s instructions, can not avail to present the propriety of those rulings for decision here, for if the refusal was error, that error was waived by the omission of the point from the specifications of the motion for a new trial. That motion did specify the giving of the single instruction .for plaintiff on the measure of damages as a ground for a new trial. That instruction is subject to serious criticism in not distinctly telling the jury the award of compensation must be based upon the evidence, and in urging the jury to “ fully ” compensate plaintiff, if they found for her. But the sum awarded is so slight in view of the injuries sustained that wre think it manifest the jury was not misled.

The city entered into a contract with the Butledge Construction Company to pave Chicago street with brick. It then leased its steam roller to the Construction Company for that work. After the work reached a certain stage the company placed the roller on South Liberty street, which crossed Chicago street. The sidewalk on South Liberty street stood several feet above the grade for the travel, of teams, on what was called the tree bank. The roller was placed" against the west tree bank. The roller was eight or nine feet high, sixteen or eighteen feet long, and six or seven feet wide. It was covered with a canvas or had canvas curtains, which "flapped in the wind. The space east of the roller where teams could travel was from thirty to forty feet wide. The roller was shown to be an object calculated to frighten ordinarily gentle horses. There was proof tending to show it had stood there a week or more; that Chicago street was substantially finished and open to public travel; that the use of the roller on that street was ended and it was simply stored there till wanted elsewhere; that on the Thursday or Frida)' before the injury the street superintendent was notified that the roller was frightening horses; that the mayor was told some time before the day of the injury that every horse was frightened by it and somebody would be killed. There was counter proof that the paving of Chicago street was not completed; that the contractor was waiting for more brick to complete a small unfinished part of the job, and that the roller had been standing on South Liberty street only three days or less. There was no direct proof that when the roller was. left on South Liberty street it was intended to use it again on Chicago street, but such is the inference. There was no proof it was used again on that improvement. The mayor and street superintendent each testified he did not remember receiving the notice proved by plaintiff, but did not deny it. We do not doubt that the city and. its contractor had the right to use a steam roller with due care in improving its streets, and had the right to temporarily leave the roller properly guarded in some appropriate place on the street, and could not be required to have a vacant lot near each improvement where the roller could be stored each night and over Sunday while the work progressed. The progress of the age demands better roads. It is the right and the duty of a city to use reasonable care to put its streets in suitable condition for public travel. It has the right to use the best appliances for that purpose, but must use such reasonable care as the circumstances permit to avoid injury therefrom to the traveling public while its street is being improved. We are of opinion it is not liable for an injury occurring from its discharge of its duty in that manner. (McMulkin v. City of Chicago, 92 Ill. App. 331.) But we are not prepared to hold that after the use of the roller had ceased, it may be left indefinitely on the streets as a place of storage with curtains flapping in the wind, after it has frightened horses and teams and the proper officials have had notice of that fact, and a reasonable time in which to remove it. Therefore in the conflicting condition of the testimony we are unable to say the verdict was not warranted by the proof. Whether the young ladies were exercising due care for their personal safety might have been decided either way under the proof, -but we do not feel warranted in disturbing the conclusion of the jury on that subject.

The allegations of the declaration were meager. While the first count said the city negligently permitted the roller to remain in South Liberty street near the beaten driveway several days, “ to the annoyance, discomfort and danger of the public driving along and upon said street,” and that when the horse drawing plaintiff approached the roller he became frightened and unmanageable and ran away, etc., it did not in express terms say the roller was calculated to frighten horses or did frighten the horse drawing plaintiff, nor that the city should have known or did know it was calculated to frighten horses, in time so it could have removed it before said injury. The second charged the roller was “ of large dimensions and unusual appearance,” and that it frightened the horse drawing-plaintiff, etc., but did not directly charge that the roller was calculated to frighten horses, nor that the city had notice. The declaration .w.as.not questioned, by demurrer. (After verdict the rule is, where there is a defect or omission in a pleading, in form or substance, which would have been fatal on demurrer, yet if the issue joined is such as necessarily requires proof of the facts defectively stated, or omitted, without which it can not be presumed that the judge would direct or the jury would give a verdict, such defect, imperfection or omission is cured by the verdict) (Twin City Gas Works v. The People, 156 Ill. 387; Cribben v. Callaghan, 156 Ill. 549.) In B. & O. S. W. Ry. Co. v. Then, 159 Ill. 535, the necessary averment that deceased was in the exercise of due care was not contained in the declaration. It was held that after the verdict the declaration was good. In City of East Dubuque v. Burhyte, 173 Ill. 553, it was said that if certain counts were defective in not averring notice to the city they were good after verdict. In Gerke v. Fancher, 158 Ill. 375, it was held that if the necessary matter is averred argumentatively, or may be inferred from the language used in the declaration, it will be good after verdict. In the present case we conclude the declaration sufficient after verdict.

Finding no reversible error in the record as presented to us for decision, the judgment is affirmed.


author: Mr. Presiding Justice Dibell

text:
    Cora L. Reed v. John W. Kimsey.
    1. Appellate Court Practice — Dismissal of an Appeal on a Short Record Not a Bar to a Writ of Error. — The dismissal of an appeal upon a short record in the Appellate Court for want of prosecution does not bar a writ of error for the purpose of reviewing the same case.

      2. Married Woman — Separate Property Not Liable for the Debts of Her Husband. — The fact that a married woman sends a pacing horse purchased by her and paid for with her own money, to various races, in charge of her husband, to whom she also gives a power of attorney to control and sell him, so that he could sell the horse for her if a favorable offer was made for it at any of the races, does not render the horse liable to be seized on an execution issued upon a judgment against the husband.

      3. Same — When Not Estopped by Declaration of Her Husband. —The fact that the husband of a married woman, intrusted with the custody and care of her property, sometimes, in her absence, speaks of the property as his own, does not estop her from claiming the property when seized upon exepution for the debts of her husband.
    4. Power of Attorney — To Sell, Does Not Authorize a Mortgage. — A power of attorney to control and sell a horse does not authorize the attorney to mortgage him.
    5. Instructions — Requiring a Clear Preponderance of the Evidence. —In a civil action, an instruction for the defendant which announces that the plaintiff is required to prove his case by a clear preponderance of the evidence, and if he has not done so the jury should find for the defendant, is improper, as a clear preponderance of the evidence is not required in civil actions.
    Replevin. — Error to the County Court of Peoria County; the Hon. R. H. Lovett, Judge, presiding. Heard in this court at the April term, 1901.
    Reversed and remanded.
    Opinion Filed November 15, 1901.
    Isaac 0. Edwards, attorney for plaintiff in error.
    James L. Loar, attorney for defendant in error.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

This was replevin by Cora L. Reed against the sheriff of Peoria county for the pacing horse, “ Streeter R,” and his blankets, etc. Defendant filed the usual pleas, and also justified under an execution in favor of Mary E. Reed against John A. Reed from the McLean Circuit Court. There were replications and a trial, and a verdict and judgment for defendant. An appeal by plaintiff was dismissed on a short record for want of prosecution, and this is a writ of error to review the same judgment. We hold, contrary to defendant’s contention, that such dismissal of the appeal does not bar the writ of error.

Plaintiff is a practicing physician, located formerly at Moline and now at Rock Island. The proof is, that while she was unmarried she requested Reed to find a team for her; that he called her attention to a team owned by W. A. Martindale of Rock Island; that she saw and examined and bought the team, one of the horses being said “ Streeter R;” that she paid $600 for the team, sending the first $100 by Reed; that she also bought the blankets, etc.; that she paid for all this property with her own' money, and Reed had no financial interest therein. Afterward she married John A. Reed. She hired and paid his son to take care of the team in a barn she rented. She hired a man to drive this pacer at races, and sent the horse to various races in charge of her husband, to whom also she gave á power of attorney to control and sell him, so that he could sell the horse for her if a favorable offer was made at any of the races. The horse was entered at various races, and always in the name of plaintiff as owner. After the horse had been driven in races at Peoria, and just as he was about to be shipped to Detroit, where he was already entered for races the next week, a deputy sheriff presented an execution against John A. Reed and took the horse thereunder, notwithstanding Reed’s assurances that the horse was owned by plaintiff. Plaintiff then brought this suit.

■ The proof upon which defendant relies is as follows: At races, Reed sometimes spoke of the horse as “ my horse,” apparently only meaning that the horse was in his charge. If he meant that the horse was his own property, he could not by any such declarations bind plaintiff. One Purcell testified plaintiff, in presence of her husband, told him she did not own the horse but it belonged to her husband. Both plaintiff and her husband denied this, and another witness testified to later statements by Purcell to him that there was no question but plaintiff owned the horse. When Reed found the deputy sheriff was bound to seize the horse, and thereby prevent the shipmént to Detroit, at the suggestion of one Stepple he borrowed $20 of Stepple and executed and delivered to Stepple in his wife’s name a bill of sale of the horse, and Stepple presented the bill of sale to the deputy sheriff, claimed to own the horse, and forbade his taking it on the writ. When they found the officer would persist in taking the horse, Reed repaid the loan to' Stepple, and Stepple surrendered the bill of sale to Reed. This was a foolish proceeding and Reed’s motives improper, but we fail to see that it should defeat plaintiff, as was the real purport of the first, seventh, ninth, and thirteenth instructions given to the jury at the request of defendant. The bill of sale was only given to secure a loan of $20, and that was repaid almost immediately and the bill of sale surrendered. The horse was not delivered to Stepple. Eeed’s power of attorney from his wife gave him no authority to mortgage the horse. This was not such a genuine sale as he had authority to make. Plaintiff was not present, and Eeed had no authority from her to attempt this trick upon the sheriff. The transaction was not in deroga.tion of plaintiff’s title. The bill of sale purported to be executed by John A. Eeed as agent for Cora L. Eeed. The effort was to put Stepple in a position where he could assert the same title- here asserted. Stepple was present, while plaintiff was in Eock Island. It was not an effort to set up some other and different title. The sheriff was not misled nor the plaintiff in execution injured by the transaction. JSTo estoppel was created against Cora L. Eeed. The undisputed proof is she bought and paid for this property with her own money, and never afterward sold or gave it to any one, and John A. Eeed had no financial interest in it. The facts above recited were, in our judgment, insufficient to defeat her title.

The fourth instruction given for defendant said that if J ohn A. Eeed was in possession of the property, that was prima facie proof he was the owner. This ignored the proof that his possession was as agent of his wife. The eighth instruction for defendant submitted the question whether the transactions between plaintiff and her husband were conducted fraudulently and for the purpose of defeating Mary E. Eeed in the collection of her judgment against John A. Eeed. Our attention is not called to any proof that plaintiff attempted to defraud or defeat Mary E. Eeed or even knew she had a judgment against John A. Eeed. The twelfth instruction for defendant announced that plaintiff was required to prove her case by a clear preponderance of the evidence, and if she had not done so the jury must find for defendant. The law is that a clear preponderanee is not required in a civil suit. (Mitchell v. Hindman, 150 Ill. 538; Taylor v. Felsing, 164 Ill. 331.) Other instructions given for defendant are open to serious objection.

The execution was for costs, solicitor’s fees and alimony, in favor of a divorced wife'of John A. Reed. In his closing speech to the jury counsel for defendant made highly improper remarks, immaterial to the case and not based upon any proof, charging that the divorce was based upon improper conduct of plaintiff with John A. Reed. The court should have stopped this when plaintiff objected and asked the protection of the court.

The judgment is reversed and the cause remanded for a new trial.


text:
    Chicago, R. I. & P. Ry. Co. v. Wallace Pierce.
    1. Malicious Prosecution — Liability of Bailroad Companies. — A passenger car standing in the yards of the Chicago, Rock Island and Pacific Railway Company at Rock Island was broken into and property stolen from it. The company sent an agent to investigate the matter and to start prosecutions against the guilty parties; a few days later the agent notified the police and they, while passing through such yards looking for tramps and offenders, found a young man in a freight car lying upon a cushion. They asked for his name and he gave them one, but after considerable questioning confessed that the name was fictitious and also that he had beaten his way from Geneseo. The policemen took him to the station, locked him up and informed the agent, who identified the cushion as the one stolen from the passenger car. Upon a statement to him by the policemen he swore out a warrant for burglary of the car; after his arrest upon it the young man procured a continuance until the afternoon of the next day and later got bail. Subsequently, upon the advice of an attorney, the prosecution for burglary was abandoned and one for vagrancy commenced, under which the young man 'was examined and discharged. Held, that under the circumstances there was nothing tending to charge the agent of the company with any improper or unworthy motive or with either legal or actual malice.

      2. Same — Suits for, Not Favored in Law. — A citizen who in good faith and without malice, under circumstances strongly tending to show guilt, institutes a criminal prosecution, should not be mulcted in damages because afterward upon a full investigation the suspicious cireumstances are explained and the innocence of the party accused made apparent. Our courts incline to the encouragement of criminal prosecutions, when instituted in good faith, without malice, and for the purpose of punishing violators of the law, and for that reason suits for malicious prosecution are not favored.
    3. Same — Aduice of an Attorney as a Defense. — Where a person, in the act of preferring a charge against a party for burglary, is advised, by an attorney sent by the public prosecutor to assist in the matter, after stating the facts to him, that the charge of burglary could not be sustained but that a charge of vagrancy could be, abandoned the charge of burglary and signed and swore to a complaint for vagrancy as prepared by the attorney upon which such party was arrested, examined and discharged, held, that the advice of the attorney given after a statement of the material facts was a protection in swearing out the warrant for vagrancy, and that in so doing the person making the complaint was not actuated by malice.
    Malicious Prosecution. — Appeal from the Circuit Court of Rock Island County; the Hon. William H. Gest, Judge, presiding. Heard in this court at the April term, 1901.
    Reversed, with a finding of facts.
    Opinion filed October 8, 1901.
    Jackson & Hurst and W. T. Rankin, attorneys for appellants; Robert Mather, of counsel.
    Weld & Olmsted, attorneys for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

This was an action for malicious prosecution and false imprisonment, brought by Wallace Pierce against The Chicago, Rock Island and Pacific Railway Company and Michael Carr. Carr was never served with summons, and did not appear as a party. Pierce filed an appropriate declaration, charging that Carr, maliciously and without probable cause, procured his arrest and imprisonment upon charges of burglary and vagrancy, to his disgrace and injury; that he was acquitted of these charges; and that Carr, in these acts, was the duly authorized agent of the railway company, and acting within the scope of his employ - ment. The railway company pleaded not guilty. Plaintiff bad two verdicts, and a judgment on the second, from which defendant appeals.

A passenger car standing in defendant’s yards at Rock Island was entered and a seat cushion stolen therefrom. Carr was agent for the company to investigate crimes against its property and to start prosecutions against parties guilty of such offenses. This matter was placed in his charge. Ten or fifteen days after the theft he notified the police. On the night of June 28-29, 1900, two policemen were passing through the railway yards looking for tramps and other offenders. On a certain stub track an empty freight car stood with closed doors. They opened one of the doors and found a young man inside on a car cushion. They asked his name and he gave one. After considerable questioning, they found in his pocket a letter addressed to Wallace Pierce, and he then confessed the name he first gave was fictitious. Pierce told the officers he had beaten his way from Geneseo, and that he was going to Davenport and had worked for a street car line there. They found money enough in his pockets to pay for a lodging, and asked why he did not go to a hotel or boarding house, and his reply was that he did not know. This was about 4 a. m. The policemen took Pierce to the station and locked him up. They then went to Carr’s room, awoke him, told him what they had done, and directed him to appear at the police station at 9 a. m. He did so. He identified the cushion found under Pierce as the one stolen from the passenger car. The policemen and the chief of police detailed the facts to Carr. He swore out a warrant against Pierce for burglary of the passenger car. Pierce procured a continuance till the afternoon of the next day, and later got bail. The next day Carr abandoned the prosecution for burglary, and swore out a warrant for vagrancy as hereafter stated.

That a burglary had been committed by some one for the purpose of stealing the cushion, and the cushion then stolen, was plain. Pierce was found in possession of the stolen cushion. The unexplained possession of property recently stolen is evidence' upon which a jury may convict of larceny, and the unexplained possession of the fruits of a burglary soon after the crime is committed is presumptive evidence that the party having that possession used the means by which the owner was deprived of it. (Waters v. The People, 104 Ill. 544; Magee v. The People, 139 Ill. 138.) The cushion was found in Pierce’s possession ten or fifteen days after it was stolen. How far the rules above stated should apply after that lapse of time depends some upon the kind of property stolen. A car cushion is not an article of general merchandise in a city like Rock Island. Pierce was a trespasser in that freight car that night, and there was nothing to indicate he was honestly in possession of the cushion. He had closed both car doors tightly in mid-summer. This indicated intentional concealment. When asked by the officers of the law, wearing police uniforms, to give an account of himself, he told them a falsehood as to his name, and persisted in it till his falsehood was detected. This naturally inclined them to disbelieve his statement that he got into the car to” stay till morning, and knew nothing of the cushion except that he found it there. If guilty of the theft, it was not to be expected he would acknowledge it. His inability to explain why he had not purchased the lodging he had money to pay for, also created an appearance against him. The indications wTere that he was a tramp and had stolen and hid the cushion in order to furnish him from night to night a comfortable bed upon which to sleep. The police officers had held Pierce five hours without a warrant and had notified Carr to appear at nine o’clock. There was every reason to suppose if Carr did not then take out a warrant Pierce would be discharged. Cdrr was not required to let the prisoner escape, while he went to Geneseo and Davenport to inquire into the past record of the prisoner and endeavored to trace him for the preceding ten or fifteen da vs. The citizen who in good faith and without malice, under circumstances strongly tending to show guilt, institutes a criminal prosecution, should not be cast in damages because afterward upon a full investigation the suspicious circumstances are explained, and the innocence of the party accused made apparent. (Jacks v. Stimpson, 13 Ill. 701; Collins v. Hayte, 50 Ill. 353; Angelo v. Faul, 85 Ill. 106.) The courts incline to the encouragement of criminal prosecutions, when instituted in good faith, without malice, and for the purpose of punishing violators of the law, and for that reason suits for malicious prosecution are not favored. (Thomas v. Muehlmann, 92 Ill. App. 571; 14 Am. & Eng. Ency. of Law, 16; Newell on Malicious Prosecution, sections 13, 14.) We are of opinion Carr had probable cause to swear out the warrant charging Pierce with the burglary. Pierce was an entire stranger to Carr, and there is no fact tending to charge Carr with any improper or unworthy motive or with either legal or actual malice.

After swearing out the warrant for burglary Carr "went to Geneseo and found Pierce belonged to a family living there. The state’s attorney was requested to attend before the justice at the adjourned date, and he sent in his place John K. Scott, an attorney of several years’ practice in that county. Scott was fully informed of the material facts. He advised Carr that a conviction for burglary could not be had, but that under the facts a complaint for vagrancy would lie. Carr then abandoned the charge of burglary, and Scott prepared and Carr signed and swore to a complaint charging Pierce with vagrancy, and he was immediately, tried and discharged, the justice holding that sleeping in a box car did not constitute vagrancy, under section 270 of the criminal code, which classes among vagabonds “ persons lodging in or found in the night time in our houses, sheds, barns or unoccupied buildings, or lodging in the open air, and not giving a good account of themselves.” Pierce -was at least within the spirit of this act. He was found in the night time in an unoccupied freight car, on premises where he had no right to be, and concealed, and he gave a false account of himself. We are of opinion the advice of the attorney sent to represent the state’s attorney, given after a statement to him of the material facts, was a protection to Carr in swearing out the warrant for vagrancy, and that Carr was not actuated by malice.

As there was probable cause and an absence of malice, plaintiff has no cause of action. After two trials, it would serve no useful purpose to remand the cause.

The judgment is therefore reversed-.

Finding of facts to be incorporated in the judgment:

We find from the evidence that Michael Carr, the agent of the railway company who performed the acts complained of, had probable cause and acted without malice, and that the proofs do not sustain any count of the declaration.


text:
    Village of Mount Morris v. John T. Kanode.
    1. Cities and Villages — Dufy as to Streets on the Outskirts. — The fact that a street is in the outskirts of a village does not relieve the municipality of its duty to exercise reasonable care to keep such street in a reasonably safe condition for public travel.
    2. Evidence — Acis of Village Authorities After an Accident. — Proof that after an accident on a street a bridge was built by the village at the place, is incompetent, for the reason that the jury might be inclined to interpret such act as a confession that the bridge was needed and that the authorities had been negligent in not building it sooner, and its admission is error; but where it appears that before the accident the village had caused material for the bridge to be delivered at the place, and after the accident completed the bridge as planned before, the admission of such evidence is harmless error.
    3. Same — Statements of Municipal Officers as Admissions. — The statements, after an accident, of a trustee of the village, who was chairman of the street committee at the time and as such had the condition of the street especially in charge, is competent as tending to show that he and the village authorities, generally, knew before the injury occurred that the street was defective.
    4. Notice — Of Defects in Streets — Sufficiency of Proof. — In an action against a village for personal injuries resulting from a defect in a street, the testimony of an alderman of the village that he knew before the accident that the street was more or less defective and that the village had done work upon it at the place a few days before, taken with the fact that he described its condition as being such that persons could get along there by careful driving, but admitted that careful driving was necessary at night, is sufficient to show that the village had notice of such defects.
    Trespass on the Case, for personal injuries. Error to the Circuit Court of Ogle County; the Hon. James Shaw, Judge, presiding. Heard in this court at the October term, 1901.
    Affirmed.
    Opinion filed November 15, 1901.
    Delos W. Baxter, attorney for plaintiff in error.
    Franc Bacon, attorney for defendant in error.
   Mr. Presiding Justice Dibell

delivered the opinion'of the court.

John T. Kanode brought this suit against the village of Mount Morris to recover damages for an injury he claimed he had sustained by reason of a defect in Reynolds street in. said village. Upon a trial he recovered a verdict and a judgment for $100, to reverse which defendant prosecutes this writ of error. It is argued the court erred in the admission of evidence for plaintiff, and that the verdict is not warranted because defendant was not negligent and plaintiff was not exercising due care.

The street was in the outskirts of the village. That did not relieve the municipality of its duty to exercise reasonable care to keep the street in a reasonably safe condition for public travel. (City of Flora v. Haney, 136 Ill. 45; City of Decatur v. Besten, 169 Ill. 340.) The accident happened about the last of May or first of June, 1900. All that spring there had been heavy rains. Water had frequently washed across and stood in Reynolds street at the place where plaintiff was hurt. A large hole had been washed in one side of the traveled way, and the ground on the other side had become softened and badly cut by travel. Plaintiff, sixtv-six years old, was driving along the street, sitting upon a load of rails. One wheel went down into a deep rut or hole, and the extra weight thus forced against the stakes which held the load on that side caused one of them to break, and plaintiff fell to the ground and part of the rails fell upon him, and he remained with part of the load lying upon him until relieved bjr persons near by. He suffered an oblique fracture of certain ribs, and the injury was painful.

Plaintiff was permitted, over defendant’s objections, to prove that after the accident a bridge was built by the village at this place and the street was thereby largely freed from the injurious effects of the' water crossing at that point. This proof was incompetent. (Hodges v. Percival, 132 Ill. 53; Columbia & P. S. R. R. Co. v. Hawthorne, 144 U. S. 202.) The reason is that the jury would be inclined to interpret the subsequent repairs as a confession that repair was needed and that defendant had been negligent in not making it sooner. In this case it further appeared that before the accident the stone for the bridge had already been placed upon the street there. The fact that the village had already caused stone for a bridge to be delivered at that place was competent evidence tending to the same conclusion, and proof that the village afterward completed the bridge planned before the accident was therefore harmless.

Plaintiff was permitted, over defendant’s objections, to prove statements made by Rine, one of the village trustees, after the accident, tending to show that he and the village authorities, generalty, knew before the injury to plaintiff that the street was defective, and would have had it repaired before that time but for delays at a saw mill where some oak timbers were being got out for the bridge. Rine was chairman of the street committee at the time, and therefore was the trustee who had the condition of this street specially in charge. If his admissions would not bind the village, still their only tendency was to prove prior notice to the village of the defective condition of the street. This was proved by other testimony. Rine himself testified he knew the street was more or less defective all the spring, and that the village had done work at that spot a few days before plaintiff was hurt; and he described its condition as such that people could get across there by careful driving, and he admitted careful driving was necessary at night. There was other proof that after this work was done a rain came and washed out the repairs. This had happened before during the same spring. We think it sufficiently proved by competent testimony that the village had notice.

■Plaintiff had passed this1 spot with an empty wagon earlier the same day. It is argued he was negligent in not seeing and avoiding the hole or depression, and also in having the rails loaded so high upon his wagon. The questions whether plaintiff was exercising due care for his own safety, under all the circumstances, and whether defendant was negligent in not having the street in a reasonably safe condition for public travel, were questions'of fact for the jury, and we find nothing in the record which would warrant us in disturbing their conclusions, especially as they were very fully and favorably instructed for defendant.

The judgment is affirmed.