text:
    The Calumet Iron and Steel Company v. Rose Martin, Admx.

      Filed at Ottawa November 14, 1885.

      1. Negligence—right of recovery—on the basis of ordinary care on the part of the plaintiff, and negligence on the part of the defendant—of the rule as to contributory and comparative negligence. In an action to recover for the death of the plaintiff’s intestate, alleged to have been occasioned by the negligence of the defendant, the jury were instructed in behalf of the plaintiff, substantially, that if the plaintiff’s intestate was in the employ of the defendant company as fireman, and while in the discharge of his duty as such fireman, he, using ordinary care and prudence for his personal safety, was injured and killed by the explosion of a certain boiler in the possession and under the control of the defendant company, and the explosion of said boiler was caused by the negligence of the defendant company in'allowing the same to be and remain out of repair, then the plaintiff was entitled to recover.
    2. Objection was taken to this instruction by defendant, upon the ground that there was evidence in the record tending strongly to charge the intestate with contributory negligence,—yet the jury were told that if the intestate used ordinary care and prudence, the plaintiff could recover if the accident was due to the negligence of the company, instead of telling the jury that the plaintiff could recover only in the event that the negligence of the intestate was slight, and that of the defendant gross, in comparison with each other.
    3. Or, as differently -formulated by defendant’s counsel, his contention was:—“It is now the settled law of this court that a man may exercise ordinary care, and yet be guilty of slight negligence. Therefore, consistently with the hypothesis of ordinary care and prudence on the part of deceased, contained in this instruction, slight negligence might be imputed to him. If so, there could be no recovery, unless the negligence of the company was gross in comparison" with that of deceased, slight negligence not being inconsistent with ordinary care. To instruct the jury that if the deceased observed ordinary care, there might be a recovery if his death was due to the negligence of the company, is to say that if deceased was guilty of slight negligence, there might be a recovery if defendant was guilty of negligence. This, as will appear, is not the law. In such case there could be a recovery only if defendant was guilty of gross negligence. ”
    4. But the instruction as given was held not to be obnoxious to the objection made. The error in the contention formulated as above, is in the assumption that the comparative relation of the negligence of the person observing clue,—i. e., ordinary, ■—care for his personal safety, and of the negligence of the person causing him injury, is not that of slight and gross, within the rule announced in the Jacobs case, 20 Ill. 478, and followed in other cases.
    5. Within the contemplation of that rule, where one has observed ordinary care with reference to the particular circumstances involved, for his personal safety, he has, even if slightly negligent, observed all the care the law inquires of him; and where, having observed this care, he is injured by the negligence of another, that other has been guilty of the degree of negligence for which the law charges responsibility. The injured person could do no more to entitle himself to redress, and no higher degree of culpability is essential to the liability of the person causing the injury, and so the two degrees of negligence, if the person observing ordinary care has been at all negligent, when compared" with each other, fall within the opposite extremes of negligence, legally considered.
    6. The rule in this State is, that in order to recover for injuries from negligence it must be alleged and proved that the party injured was, at the time he was injured, observing due or ordinary care for his personal safety;—■ and that where a party, while observing due or ordinary care for his personal safety, is injured by the negligent acts of another, there may be a recovery on account of such negligent acts. Nor is it to be understood that the rule of comparative negligence changed or modified the general rule requiring that the injured party, in order to recover for the negligence causing his injury, must have observed due or ordinary care for his personal safety, and authorizing him to recover for such injuries where he has observed such care.
    7. Instbtjction—construed, as whether assuming there was negligence. On the trial of an action on the case, by the personal representative of a deceased person, to recover damages for his death, resulting from negligence of defendant, the court' instructed the jury, in substance, that if they believed, from the evidence, that plaintiff’s intestate, being in defendant’s employment as fireman, and while in the discharge of his duty as such, and while exercising ordinary care and prudence for his safety, was injured and killed by reason of the explosion of a boiler of defendant, as alleged in the declaration, and that the explosion of the boiler was caused by negligence of defendant in allowing one of the wheels which controlled one of the valves of such boiler to be and remain broken off, so that the valve could not be operated properly with safety, and allowing the same to be and remain in an unsafe and defective condition to be used and operated with safety, .(if the same was so defective,) and that defendant had knowledge of such defective condition, (if the jury believe, from the evidence, that it was so defective,) or would, by the exercise of reasonable care and caution, have discovered such defective condition, then their verdict should be for the plaintiff, if he left a widow and children surviving him, and the former took out letters, etc., as alleged; Held, that the instruction was not liable to the objection that it assumed negligence in failing to put a new wheel upon the valve.

      8. Same—unnecessary modification—but not materially changing its sense. Even if a modification of an instruction was not necessary, yet if the words inserted in the same by the modification do not materially change the obvious sense of the instruction as asked, and they but express what was before implied, there will be no error in making the modification.
    9. Same—direction as to limiting damages to ad damnum. On the trial of an action to -recover damages for negligence, causing the death of plaintiff’s intestate, the court instructed the jury, for the plaintiff, that in assessing the damages they should not assess the same above the amount claimed in the declaration: Held, that while such an instruction was faulty and censurable, it would not justify a reversal, as it did not appear to have affected the verdict.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. Flower, Remy & Gregory, for the appellant:
    If the fact of the valve being open was due to the negligence of the foreman, no recovery can be had. His negligence in performing his duties is one of the risks deceased took. Railroad Co. v. May, 108 Ill. 288; Pease v. Railway Co. 61 Wis. 163.
    If machinery is defective, and an employe sue to recover damages for an injury due to the defect, he can not recover if he knew of the defect. Missouri Furnace Co. v. Abend, 107 Ill. 44; Railway Co. v. Clark, 108 id. 113.
    If the valve was not closed by the deceased, then, even if the company was negligent in not supplying a new wheel, his negligence was gross, and that of the company was slight, and there can be no recovery. Foster v. Railway Co. 84 Ill. 164.
    It is the settled law of this court that a man may exercise ordinary care and yet be guilty of slight negligence. In such case there can be no recovery unless the negligence of appellant was gross in comparison with that of the deceased. 2 Thompson on Negligence, see. 15, p. 1168; Railroad Co. v. Jacobs, 20 Ill. 478; Railroad Co. v. Johnson, 103 id. 512.

      Messrs. Monboe & Leddy, for the appellee :
    Appellant was bound to use reasonable care and- diligence to supply its employes with suitable and safe machinery and appliances, and to keep the same in a safe and proper condition.
    Negligence by a representative of the master, arising in the form of improper orders and directions given about the work, and in the control of operatives, will render the master liable. Railroad Co. v. May, 108 Ill. 288; Fanter v. Clark, 15 Bradw. 470; Lalor v. Railroad Co. 52 Ill. 401; Railroad Co. v. Jackson, 55 id. 492.
    When defective machinery is the proximate cause of the injury complained of, the fact that negligence of a co-servant contributed to the injury, does not defeat a recovery. Wood on Master and Servant, sec. 405; Wharton on Negligence, sec. 227; Paulmeiser v. Railroad Co. 34 N. J. 151; Perry v. Ricketts, 55 Ill. 234; Railroad Co. v. Jackson, id. 492; Cayzer v. Taylor, 10 Gray, 274.
    In a ease like the one at bar, it need not affirmatively appear, by direct evidence, that deceased did not have notice of the defective machinery, or was in the exercise of ordinary care, but the same may be inferred from the surrounding facts and circumstances. Missouri Furnace Co. v. Abend, 107 Ill. 44; Railroad Co. v. Gregory, 58 id. 278; Railway Co. v. Clark, 108 id. 113.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This is an appeal from the judgment of the Appellate Court for the First District, affirming a judgment of the Superior Court of Cook county, in an .action on the case, brought by appellee, against appellant.

Appellant operated iron and steel works at Cummings, in Cook county, and appellee’s intestate, at the time of receiving the injuries whereof he died, was in its employ as a fireman. His duties were' to assist in keeping up the fires under the boilers, of which there were eighteen, constituting a battery, and in cleaning them. One-half of the boilefs were cleaned each Sunday. They were connected with a steam-drum, which they supplied with steam,, and from which steam was furnished to the engines. Boilers 1 and 2 were furnished with a connection direct with the steam-pumps, so that when the other boilers were not making steam, these two, or either of them, could be used to run the pumps. This connection communicated with the steam-drum, although there was a valve which shut off:such communication, when closed. There was also, on each of boilers 1 and 2, a valve which shut off the access of steam to this connection for running the pumps. That valve was usually controlled by an eight-inch wheel, but this was broken off. The valve was opened and closed, after the wheel was broken off, by a pair of “pipe tongs.” Under each mud-drum was an escape valve, through which the boilers were blown off. The valve controlled by the wheel which was broken off was not closed, but was thought to have been closed by Flaherty, the foreman. On Sunday morning, October 1, 1882, the foreman, Flaherty, ordered appellee’s intestate and one Lee to clean out certain boilers which had been previously marked or chalked' by Flaherty for that purpose. They were proceeding to obey the order, and while they were in the act of taking off the head of the mud-drum of boiler No. 1, an explosion occurred, seriously injuring them both. The intestate died in consequence, within a few hours. The cause of the explosion was the escape of steam through the valve controlled by the broken wheel. The valve under the mud-drum was found closed, after the explosion. The master mechanic of appellant was notified of the broken wheel a week or more before the explosion, but neglected to repair it until afterwards.

Three reasons are urged why; on the facts, there should be no recovery: .

First—The proof is that the broken wheel in nowise contributed to the accident, because the valve could be managed just as well with tongs, and failure to close it was due to the negligence of Flaherty, a co-employe with deceased, or to inevitable accident.

Second—The wheel had been broken off for a week or over, was in plain sight when on, and its absence must have been-perfectly apparent to deceased. He took the risk, therefore, in not objecting or refusing to work with it in that condition. If he was ignorant of this defect, it was for appellee to plead and prove that fact.

Third—It was contributory negligence of the grossest character for deceased to close the escape valve under the mud-drum, or to attempt to take off the mud-drum head, when the escape of steam through this valve warned him that he ran some risk in working on that boiler while there was yet steam in it.

There is, in our opinion, evidence in the record tending to support the opposite of each of these contentions, so that the questions were sufficiently before the jury for their determination, and we are therefore relieved, by the judgment of the Appellate Court, from giving them further consideration. Chicago and Alton Railroad Co. v. May, Admx. 108 Ill. 288; Missouri Furnace Co. v. Abend, 107 id. 44; Peoria and Pekin Union Railway Co. v. Clayberg, Admr. id. 644; Chicago, Burlington and Quincy Railroad Co. v. Bell, 112 id. 360.

As pertinent to the question presented by the third of these reasons, counsel for appellant asked the court to instruct the jury as expressed in his second instruction, not including what is printed in italics, but the court modified it by adding what is printed in italics, and in this form gave it to the jury, it then reading thus:

“Again, if you find, from the evidence, that the accident in question would not have occurred if the escape valve under the mud-drum had been open, and that it ought to have been open, and that it was, in fact, improperly shut, either through the negligence of Flaherty, or of Martin or of Lee, and that this was the cause of the accident, then the plaintiff can not recover. ”

Counsel for appellant contend that the modifications of the court “were unnecessary and erroneous, directing the atten•tion of the jury to misleading considerations of morals or propriety, apparently difficult for anybody to understand as applied to this case. ” Conceding that the modifications were not necessary, still it does not follow that making them was such error' as would authorize a reversal. They but express what was before implied. There is no “consideration of morals” involved. A jury, we think, would understand by the words, “and that it ought to have been open,” that the duty of the foreman, or the intestate and Lee, was tp have seen that it was open; and the word “improperly, ” correctly applies to keeping a valve shut when duty required it to be kept open.

The first instruction given at the instance of appellee is as follows:

“The court instructs the jury that if they shall believe, from the evidence, that on or about October 1, 1882, the plaintiff’s intestate, Patrick Martin, was in the employ of the defendant company as fireman, and that while in the discharge of his duty as such fireman, he was using ordinary care and prudence for his personal safety while he was so employed, and that he was injured and killed by reason of the explosion of a certain boiler in the possession of and under the control of the defendant company, as alleged in the declaration; and if the jury shall further believe, from the evidence, that the explosion of said boiler was caused by negligence of the defendant company in allowing one of the wheels which controlled one of the valves of said boiler to be and remain broken off, so that the valve could not be operated properly with safety, and allowing the same to be. and remain in an unsafe and defective condition to be used and operated with safety, (if the same was so defective,) and that the defendant company had actual knowledge of such defective condition, (if the jury believe, from the evidence, it was so defective,) or would, by the exercise of reasonable care and caution, have discovered such defective condition, then your verdict should be for the plaintiff, if he left a widow and children surviving him, as alleged in the declaration, and she took out letters of administration, as therein alleged. ”

Counsel for appellant contend this is erroneous, because, first, it assumes the defendant was guilty of actionable negligence in failing to put a new wheel upon the valve through which the steam escaped into the boiler; and secondly, the evidence in the record tends strongly to charge the intestate with contributory negligence,—yet the jury are told that if the intestate used ordinary care and prudence, the plaintiff can recover if the accident was due to the negligence of the company, instead of telling the jury that the plaintiff could recover only in the event that the negligence of the intestate was slight, and that of the defendant gross, in comparison with each other. Neither contention is tenable.

First—Nothing that was contested upon the trial is assumed in the instruction. The fact that “one of the wheels which controlled one of the valves of the boiler” that exploded, was, at the time of the explosion, and that for some time prior it had been, broken off, was admitted on the trial by both sides, and is conceded as a fact in the instructions asked and given at the instance of appellant. Whether negligence in allowing that wheel to be and remain broken off caused the explosion, and whether appellant had actual knowledge of the fact of the wheel being broken off, or would, by the exercise of reasonable care and caution, have discovered such fact, are fairly left to be determined by the jury from the evidence.

Second—The ground of the second contention is thus stated by counsel: “It is now the settled law of this court that a man may exercise ordinary care, and yet be guilty of slight negligence. Therefore, consistently with the hypothesis of ordinary care and prudence on the part of deceased, contained in this instruction, slight negligence might be imputed to him. If so, there could be no recovery, unless the neglh gence of appellant was gross in comparison with that of deceased, slight negligence not being inconsistent with ordinary care. To instruct the jury that if the deceased observed ordinary care, there might be a recovery if his death was due to appellant’s negligence, is to say that if deceased was guilty of slight negligence, there might be a recovery if defendant was guilty of negligence. This, as will appear, is not the law. In such case there could be a recovery only if defendant was guilty of gross negligence. ” Counsel are hardly in a position to raise this objection, for in their first instruction they induced the court to give the law to the jury in the identical language which they thus contend is erroneous. That instruction is as follows:

“The negligence alleged against the defendant by plaintiff is a failure to keep in safe condition, or repair properly, machinery. If you should find, from the evidence and under the instructions of the court, that the accident shown in evidence occurred through the fact that the wheel operating the valve was broken, and that this was the direct cause of the accident, and that the defendant’s agent or agents ■ whose duty it was to repair this wheel were guilty of negligence in failing promptly so to do, and that Martin, the deceased, was injured without negligence on his part, and while exercising due care, then it is true that the defendant would be liable; but, on the contrary, should you find, from the evidence, that the accident did not occur from the fact that the wheel was broken, but that the valve, by due care, might be closed by other appliances, and that it was not so closed, either through lack of due care on the part of Flaherty, or owing to a ‘scale’ or other mechanical obstruction in the valve, which causes. would have the same effect had the wheel not been broken, then there can be no recovery here. ”

If the language was erroneous in one instruction it w'as erroneous in the other; but its mere repetition, it would seem clear, could not aggravate the error. The rule is reasonable, and recognized by previous decisions of this court, that a party can not assign for error a ruling made at his own instance. (Northern Line Packet Co. v. Binninger, 70 Ill. 571.) But in order that misapprehension may be avoided in the future, we shall waive this answer, and assume that the question discussed by counsel is properly before us for consideration.

The error in the contention formulated in the language of counsel, which we have quoted, is in the assumption that the comparative relation of the negligence of the person observing due—i. e., ordinary,—care for his personal safety, and of the negligence of the person causing him injury, is not that of slight and gross, within the rule announced in the Jacobs case, 20 Ill. 478, and maintained in other cases governed by the ruling in that case. Within the contemplation of that rule, where one has observed ordinary care with reference to the particular circumstances involved, for his personal safety, he has, even if slightly negligent, observed all the care the law requires of him; and where, having observed this care, he is injured by the negligence of another, that other has been guilty of the degree of negligence for which the law charges responsibility; The injured person could do no more to entitle himself to redress, and no higher degree of culpability is essential to the liability of the person causing the injury, and so the two degrees of negligence, if the person observing ordinary care has been at all negligent, when compared with each other, fall within the opposite extremes of negligence, legally considered. Without attempting to demonstrate the entire accuracy of this, we content ourselves with showing that it is within the meaning of the court, as disclosed by the opinions in the cases to which we have referred, and in other cases to which we shall hereafter refer.

From the earliest reported case in our Reports, where the question was passed upon, to the present time,—a period of more than thirty years,—the general rule has been declared, and recognized in opinions announced from time to time, that in order to recover for injuries from negligence it must be alleged and proved that the party injured was, at the time he was injured, observing due or ordinary care for his personal safety. A. B. R. R. Co. v. Grimes, 13 Ill. 585; C. and M. R. R. Co. v. Patchin, 16 id. 198; Dyer v. Talcott, id. 300; G. and C. U. R. R. Co. v. Yarwood, 17 id. 509; C., B. and Q. R. R. Co. v. Dewey, Admr. 26 id: 255; C., B. and Q. R. R. Co. v. Hazzard, id. 373; I. C. R. R. Co. v. Simmons, 38 id. 242; C. and A. R. R. Co. v. Gretzner, 46 id. 76; I. C. R. R. Co. v. Weldon, 52 id. 294; I. C. R. R. Co. v. Schultz, 64 id. 177; C., B. and Q. R. R. Co. v. Van Patten, id. 510; C., B. and Q. R. R. Co. v. Lee, 68 id. 579; T., W. and W. Ry. Co. v. McGinnis, 71 id. 346; I. C. R. R. Co. v. Godfrey, 71 id. 507; I. C. R. R. Co. v. Hall, 72 id. 222; G. T. M. and T. Co. v. Hawkins, id. 388; C. and A. R. R. Co. v. Becker, Admr. 76 id. 31; T., W. and W. R. R. Co. v. Jones, id. 315; O. and M. R. R. Co. v. Stratton, 78 id. 88; C. and N. W. Ry. Co. v. Hatch, 79 id. 137; C., B. and Q. R. R. Co., v. Harwood, 80 id. 88; C., B. and Q. R. R. Co. v. Damerell et al. 81 id. 450; I. C. R. R. Co. v. Green, id. 19; Kepperly v. Ramsden, 83 id. 354; I. C. R. R. Co. v. Lutz, 84 id. 598; Ind. and St. L. R. R. Co. v. Evans, 88 id. 63; T., W. and W. Ry. Co. v. Grable, id. 441; C., B. and Q. R. R. Co. v. Harwood, 90 id. 425; Austin, Admx. v. C., R. I. and P. R. R. Co. 91 id. 35; C. and A. R. R. Co. v. Pennell, 94 id. 448; W. Ry. Co. v. .Elliott, 98 id. 481; City of Joliet v. Seward, 99 id. 267; City of Bloomington v. Perdue, id. 329; Schmidt v. Sinnott, 103 id. 160; C. B. and Q. R. R. Co. v. Johnson, Admx. id. 512; City of Bloomington v. Chamberlain, 104 id. 268; City of Chicago v. Stearns, 105 id. 554; L. E. W. Ry. Co. v. Zoffinger, 107 id. 199; Mo. F. Co. v. Abend, Admr. id. 44; C., B. and Q. R. R. Co. v. Warner, 108 id. 538; C., B. and Q. R. R. Co. v. Avery, 109 id. 314; W., St. L. and P. Ry. Co. v. Wallace, 110 id. 114; Myers, Admx. v. I. and St. L. Ry. Co. 113 id. 386.

■ The necessary implication, from the rulings in these cases, obviously is, that where a party, while observing due or ordinary care for his personal safety, is injured by the negligent acts of another, there may be a recovery on account of such negligent acts, and in some of the cases this' is expressly ruled. Thus, in I. C. R. R. Co. v. Schultz, supra, the court said: “Ordinary diligence only was required of the plaintiff, to avoid the injury, and the liability of the company would then be fixed if it was guilty of negligence. ” In I. C. R. R. Co. v. Godfrey, supra, the court again said: “Where both parties are equally in the position of right, which they hold independent of the favor of each other, the plaintiff is only bound to show that the injury was produced by the negligence of the defendant, and that he exercised ordinary care or diligence in endeavoring to avoid it.” And in L. E. and W. Ry. Co. v. Zoffinger, supra, it was said: “There is evidence tending to show plaintiff was struck by the cars being moved by defendant, at or on the crossing of Howard street; that the train was being run at an unusual rate of speed; that no bell was rung or whistle sounded; that there was no light on the forward car that struck plaintiff, and that plaintiff was observing due care for his safety. ” And by these facts, said the court, “a clear case is made in favor of plaintiff, where a recovery is fully justified.” In Schmidt v. Sinnott, supra, the declaration alleged “proper care” on the part of the plaintiff and negligence on the part of the defendant, resulting in injury to the plaintiff. Under the plea of not guilty, it was held these allegations were put in issue, and a judgment for the plaintiff was sustained, the court holding that the allegation of “proper care” was equivalent to an allegation of “ordinary care. ” And in Meyers v. I. St. L. Ry. Co. supra, which was an action for negligence, resulting in the death of the plaintiff’s intestate, who was fatally injured while in the employ of the defendant as a section hand engaged in repairing its track, the court said: “In order to recover for an injury of this character, the person injured must exercise ordinary care to avoid danger, and those in charge of the train must be proven to have been negligent in the management of the train. ”

It inevitably follows, from the rulings in the numerous cases to which we have referred, that the court has not understood that the rule of comparative negligence changed or modified the general rule requiring that the injured party, in order to recover for the negligence causing his injury, must have observed due or ordinary care for his personal safety, and authorizing him to recover for such injuries where he has observed such care. And it will be quite apparent that it was not intended by the judges who decided the Jacobs case, and the earlier cases following the ruling in that case, that the rule of comparative negligence, as then announced, was to have that effect, by reference to those cases and to different expressions of opinions by those judges. When the Jacobs case was decided, Judges Breese, Catón and Walker were the members of the court. The opinion in that ease was prepared by Mr. Justice Breese.- In that opinion he not only refers, without any expression of dissatisfaction, to A. B. R. R. Co. v. Grimes, 13 Ill. 585, but quotes the following from the opinion in that case as a correct exposition of law: “Where both parties are equally in the position of right, which they hold independent of the favor of each other, the plaintiff is only bound to show that the injury was produced by the negligence of the defendant, and that he exercised ordinary care and diligence in endeavoring to avoid it, or that by the exercise of ordinary care he could not have avoided it. ” And, then, after quoting from Dyer v. Talcott, C. and M. R. R. Co. v. Patchin, G. and C. U. R. R. Co. v. Fay, G. W. R. R. Co. v. Thompson, C. M. T. R. R. Co. v. Rockafellow, I. C. R. R. Co. v. Reedy, City of Chicago v. Reedy, Chicago v. Major, previously decided by this court, the opinion proceeds: “The rulings of other courts, British and American, do not essentially differ from these, as will be perceived by reference to them as cited by the court. In addition to the cases cited, reference may, with propriety, be made to 2 Chipman, Yt. B. 128, 2 Pickering R. 621, 12 id. 177, 6 Cowen B. 180, 4 Mass. 422, 2 Taunton, 314,—all proceeding on the ground not only that the defendant was guilty of negligence, but that the plaintiff exercised ordinary care,—and throwing the onus in each aspect upon the plaintiff. ” After this, the opinion proceeds with an analysis of what are assumed to be the leading cases in England, and in several of the States of the Union, upon the question of contributory negligence, and, in concluding, uses this language: “It will be seen, from these cases, that the question of liability does not depend absolutely on the absence of all negligence on the part of the plaintiff, but upon the relative degree of care or want of care, as manifested by both parties, for all care or negligence is at best but relative, the absence of the highest possible degree of care showing the presence of some negligence, slight as it may be. The true doctrine, therefore, we think, is, that in proportion to the negligence of the defendant should be measured the degree of care required of the plaintiff,—that is to say, the more gross the negligence manifested by the defendant, the less degree of care will be required of the plaintiff to enable him to recover. Although these cases do not distinctly avow this doctrine in terms, there is a vein of it, very perceptible, running through very many of them, as, where there are faults on both sides, the plaintiff shall recover, his fault being to be measured by the defendant’s negligence; the plaintiff need not be wholly without fault, as in Raisin v. Mitchell, and Lynch v. Nurdin. We say, then, that in this, as in all like cases, the degrees of negligence must be measured and considered, and whenever it shall appear that the plaintiff’s negligence is comparatively slight and that of the defendant gross, he shall not be deprived of his action. ”

Thus, it is seen no previous decision of this court was assumed to be overruled. No new doctrine was claimed to be announced, but the rule declared was, in effect, claimed to be sanctioned by the spirit and philosophy of the cases reviewed, though not strictly within their letter. Afterwards, in C., B. and Q. R. R. Co. v. Hazzard, supra, Mr. Justice Breese, delivering the opinion of the court, at page 385 said: “We endeavored, in the case of the G. and C. U. R. R. Co. v. Jacobs, 20 Ill. 478, by a review of all the American and English cases relating to negligence, to lay down some rules by which it is to be adjudged. Among others, we there said, to maintain an action for negligence there must not only be fault on the part of the defendant, but ordinary care on the part of the plaintiff must be shown. Neither of these elements is found in this case.” In C., B. and Q. R. R. Co. v. Cauffman, 28 Ill. 513, the opinion was by Catón, J., holding that if a party is guilty of negligence or the want of ordinary care, and allows stock to run in a highway near a railway crossing, he can not recover for injuries received by such stock. In I. C. R. R. Co. v. Simmons, 38 Ill. 242, Mr. Justice Breese contended that a declaration in an action for injuries resulting from negligence, in which it was not averred that the plaintiff observed proper care, was bad on motion in arrest, but the majority of the court overruled him, holding that if it was error, it was cured by verdict. In C. and A. R. R. Co. v. Gretzner, 46 Ill. 75, the opinion of the court was by Mr. Justice Breese. In that opinion, on page 83, after referring to the Jacobs and Hazzard cases, and to Deiuey’s case, he says: “These cases establish the doctrine of comparative negligence, and hold there must be fault on the part of the defendant, and no want of ordinary care on the part of the plaintiff, and where there are faults on both sides, the plaintiff may, in some cases, recover,—as, where it appears his negligence is slight and that'of the defendant gross.” Again, in C. and N. W. R. R. Co. v. Sweeney, 52 Ill. 327, the opinion was also by Mr. Chief Justice Breese, and in discussing the questions presented, referring to Gretzner’s case, supra, he said: “In the case of C. and A. R. R. Co. v. Gretzner, the question of comparative negligence was again discussed, and it was said, to render a railroad company liable there must be fault on their part, and no want of ordinary care on the part of the plaintiff, and when both parties are in fault, the plaintiff may, in some cases, recover,—as, when it appears his negligence is slight and that of the defendant gross.” In C., B. and Q. R. R. Co. v. Dewey, Admr. supra, Walker, J., in delivering the opinion of the court, said: “Bach party must employ all reasonable means to foresee and prevent injury.” And again: “Whilst the party upon whom the injury is inflicted must use all reasonable care, he is not held to the highest degree of precaution of "which the human mind is capable; nor to recover need he be wholly free from negligence, if the other party has been culpable.” In C. and A. R. R. Co. v. Pondrom, 51 Ill. at page 337, the same judge, in delivering the opinion of the court, alluding to the doctrines of comparative negligence, and that held by other courts, said the difference was more apparent than real. Again, in C. and N. W. Ry. Co. v. Ryan, 70 Ill. at page 213, Mr. Justice Walker, in delivering the opinion of the court, among other things said: “It is undoubtedly the duty of all persons who undertake to cross a railroad track, to act with caution and prudence, because it is apparent that such crossings are always more or less dangerous. This being the case, those who desire to cross must use every reasonable precaution to avoid an accident, and if they fail to do this, no recovery can he had for an injury which might have been averted by the exercise" of ordinary care. ” And again, in T., W. and W. Ry. Co. v. McGinnis, 71 Ill. supra, at page 347, Mr. Justice Walker, in delivering the opinion of the court, after stating-that the rule of comparative negligence is the settled law of this court, added: “The rule is, no doubt, a modification of the language of the earlier decisions of this court, although not in fact a material modification of the common law principle. Where courts state the rule differently, they hold where the negligence of a plaintiff is slight and that of the defendant gross, that plaintiff’s negligence did not contribute materially to the injury. ”

The position contended for by appellant is, in substance, that where one party is injured by the negligence of another, in order to recover therefor the party injured must prove that he exercised more than ordinary care,—that is to say, the highest degree of care. This has no sanction in any authority of which we are aware. Expressions may be found in opinions in a few cases to which we have made no reference, not in entire harmony with what we have quoted from opinions supra. These expressions occur, in the main, in the argument of the opinion, and we do not now recall any case in which they actually controlled the decision of the case. They are, however, in any view, exceptional, and inaccurate as expressions of the law, and to be considered as overruled.

There was, therefore, no error in the instruction as given. If either party had felt it to be necessary to have gone further, and explained to the jury that ordinary care does not exclude the idea of all negligence, however slight, but that the plaintiff was entitled to recover, notwithstanding the intestate might have been slightly negligent, provided the defendant was guilty of negligence which, in comparison with it, was gross, the court should have been requested to so instruct the jury. Such an instruction might, without impropriety, have been given. It was not indispensable.

The only remaining ground urged for reversing the judgment below is, that the jury were instructed that in assessing the plaintiff’s damages they should not assess the same above the amount claimed in the acl damnum of the declaration. It does not appear, from the amount of the verdict or otherwise, that this instruction affected the action of the jury. While it is certainly censurable, it will not justify a reversal of the judgment. C., B. and Q. R. R. Co. v. Payne, Admr. 59 Ill. 534; I. and St. L. R. R. Co. v. Estes, 96 id. 470.

The judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Chibe Justice Mulkey

license: Public Domain

text:
    The Chicago and Western Indiana Railroad Company v. The Englewood Connecting Railway Company.

      Filed at Ottawa January 25, 1886.

      1. Eminent domain—one railroad company seeking to cross the tracks of another—elements of damages. In a proceeding by one railway company seeking to condemn a right of way across the tracks of another company, notwithstanding the petitioner stipulates to put down at its own expense, and keep in good repair, all necessary frogs and crossings for its main tracks 'across the tracks of the other company, the defendant company, on the assessment of the damages, to be paid, has the right to show to the jury that the value of its road, and its capacity to do business, will be impaired by the proposed crossing, and it is error to exclude such evidence.
    2. In such case the company seeking to obtain the right of way is liable for all damages directly resulting to the defendant company from the making or using of the crossing, whereby the value of its property is diminished, or its facilities are materially impaired for the transaction of its business. If the inconvenience or hindrance resulting from such crossings or other structures abridges the owner’s capacity to transact an equal volume of business, it is an element of damages, even though it does not increase his expenses.
    3. The value of railroad property, outside of advantages of location and the amount of business it controls, consists in the strength, permanency and durability of its structures, and its adaptability and capacity of doing railroad business. Whenever, therefore, a proposed condemnation and subsequent user will injuriously affect such a property in either of these respects, the injury thus occasioned will form a proper basis for the assessment of damages in a proceeding to condemn.

      Appeal from the County Court of Cook county; the Hon. Bichard Prendergast, Judge, presiding.
    On the 29th of April, 1885, the Englewood Connecting Eailway Company filed in the county court of Cook county the following petition:
    “Tour petitioner, the Englewood Connecting Bailway Company, respectfully shows unto your honor that it is a corporation duly organized and existing under and by virtue of the law of the State of Illinois, and as such is authorized to construct and operate a line' of railroad from a point on the Chicago, St. Louis and Pittsburgh railroad, in the town of Lake, in the county of Cook and State of Illinois, between Fifty-eighth and Fifty-ninth streets, running thence east-war dly to a point on the Pittsburgh, Fort Wayne and Chicago railroad, in said town, county and State, between said Fifty-eighth and Fifty-ninth streets, with the right to construct all such side-tracks, switches, and lateral and other branches, as the said railway company from time to time, by resolution of its board of directors, determine and elect to build. Tour petitioner further shows that its said line of railroad is located in accordance with its charter; that the said line of railroad so located by your petitioner intersects and passes over and across the railroad tracks of the Chicago and Western Indiana Bailroad Company laid1 in Wallace street, in said town of Lake, at a point in front of, and opposite to, lots 11 and 12, in block 4, in Eliza A. Temple’s subdivision of the east half of the south-west quarter of the south-west quarter of the north-west quarter of section 16, township 38, north, range 14, east of the third principal meridian, and that your petitioner desires, to ^appropriate and use so much of the track of said Chicago and Western Indiana Bailroad Company, in said Wallace street, as may be necessary to make the crossing'for two main railroad tracks of your petitioner; that said crossing is necessary for the purposes of your petitioner’s railroad, and to operate the same; that your petitioner is unable to agree with said Chicago and Western Indiana Bailroad Company as to the proper or just compensation to be paid to said railroad company for said crossing. Your petitioner further shows that it is ready and willing, and has offered to said railroad company, and hereby offers, to put down, at your petitioner’s cost, all necessary crossing frogs for two main tracks over the said tracks of said Chicago and Western Indiana Bailroad Com.pany, in said Wallace street, and to perpetually keep and maintain the said crossing in good and safe repair and condition, at your petitioner’s charge and cost; that your petitioner therefore prays that summons may be ordered to issue to said Chicago and Western Indiana Bailroad Company, defendant, commanding it to appear before this honorable court on the first day of its next term, and that a jury may be empaneled to ascertain the just compensation to be paid by your petitioner to said defendant for said crossing for said main tracks of your petitioner’s railroad. And your petitioner will ever pray, ” etc.
    The Chicago and- Western Indiana Bailroad Company filed a cross-petition," charging “that the said property of this cross-petitioner, which it is proposed to take and appropriate to the use of said original petitioner for a crossing, as in said 'petition is prayed, is part of a continuous line of railroad right of way in constant use, and is owned lay this cross-complainant ; that said right of way extends continuously from Polk street, in the city of Chicago, on the north, a distance of seventeen miles, to Dalton, a town situated near the State line, between the States of Illinois and Indiana, with a branch leaving the line of road near Eighty-third street, and extending thence east and south a distance of seven miles, to a point on the State line of Indiana and Illinois, near Hammond, in the State of Indiana; ■ that cross-petitioner has a very valuable and extensive passenger depot at Polk street, in the city of Chicago, and also five freight houses, five freight yards, five engine houses, five switching yards, and a large amount of other property designed for use and being prepared for use as freight and switching yards north of said proposed crossing, and between that and Polk street, in the city of Chicago, a distance of about six miles; that said property was acquired at great expense, and is of great value, and by far the greater part thereof, both in amount and value, is and always, since it was acquired by your petitioner, has been used in connection with its said right of way extending to Dalton and Hammond, as aforesaid, and its chief value is for use in connection with said continuous right of way; that at the point where said crossing is proposed to be constructed, said road is used by agreement with this cross-complainant, and for considerations paid to it by the railroad corporations known as the Wabash, St. Louis and Pacific Bailway Company, the Chicago and Eastern Illinois Bailroad Company, Chicago and Atlantic Bail way Company, Louisville, New Albany and Chicago Bailway Company, and Belt Bailway Company of Chicago; that more than one hundred trains pass over the same daily, and that said business is constantly increasing ; that respondent has now two tracks in use at said point, and also a short track, now .used as a side-track, and that said side-track is not on the same level as said main-tracks, and must be raised to such level, if said crossing is allowed, at great expense to cross-complainant; that by the building of the said crossing as proposed, and the use thereof, and the use which can be made of this cross-petitioner’s entire property aforesaid, for the said railroad purposes, will be greatly decreased, hindered and prevented, and its value greatly depreciated, and the cross-complainant claims damages therefor. ”
    On the 9 th of June, and before the trial of the cause, the petitioner stipulated that it would, at its own expense, put down, and thereafter keep and maintain in good and safe repair and condition, all necessary frogs and crossings for its two main-tracks across the tracks of respondent, as indicated in its petition, plat and profile, so long as a grade crossing shall be maintained, to be binding on its assigns; also, that it would provide and maintain at its own charge and exjjense the flagmen or watchmen necessary at said proposed crossing; and further, that it will require for the crossing in question not to exceed thirty feet in width at grade, from the western line to the eastern line of said Wallace street.
    There was a trial upon the merits before the court and a jury, resulting in a verdict and judgment in favor of .the appellant for $400, to reverse which this appeal is brought.
    Mr. Charles M. Osborn, for the appellant:
    In the taking of property already, devoted to a public use, the use to which it is to be devoted must be a different and superior one. Railroad Co. v. Railway Co. 97 Ill. 512.
    The necessity for taking it must be absolute, not a merely reasonable one,—that is, the questions of convenience and expense can not be allowed to enter into the determination of the necessity. St. Louis F. and C. Co. v. Trustees of Blind Asylum, 43 Ill. 303; Horse Railway Co. v. Horse Railway Co. 81 id. 523; Hickock v. Hine, 23 Ohio St. 531; Pugh v. Railroad Co. Law Rep. 12 Ch. Div. 274; Railroad Co. v. Railroad Co. 97 Ill. 506.
    The next error insisted upon is, that the court improperly excluded all evidence of the injury done to the value of the property of the Chicago and Western Indiana Bailroad Company, considered as a whole, and refused to give proper instructions concerning such damages, in effect ruling that only structural damages could be recovered. Railroad Co. v. Railroad Co. 100 Ill. 21; Railroad Co. v. Railroad Co. 67 id. 147 ; Railroad Co. v. Railroad Co. 35 Mich. 365; Railway Co. v. Railway Co. 105 Ill. 110; Railroad Co. v. Railway Co. 105 id. 388.

      Mr. R. Biddle Roberts, and Mr. Frank J. Loesch, for the appellee:
    In view of the stipulations made by appellee in open court, and filed by it, we claim that the court below was clearly right upon its ruling on the question of damages. Railway Co. v. Railway Co. 105 Ill. 110; id. 388.
    In view of the stipulation made by appellee to provide and maintain at its- own charge and expense the flagmen or switchmen necessary at said crossing, it would have been manifestly improper to have allowed evidence of the cost of extra watchmen and flagmen by appellant.
    The stipulation and ruling were in- accordance with law, as laid down! in Railroad Co. v. Railway Co. 105 Ill. 388.
    Messrs. Willard & Driggs, also for the appellee.
   Mr. Chibe Justice Mulkey

delivered the opinion of the Court:

A reversal of the judgment in this case is urged on several grounds, but as one of them is deemed sufficient it will not be necessary to consider the others.

Appellee having stipulated to “put down at its own expense, and thereafter keep and maintain in good repair and condition, all necessary frogs and crossings for its two main tracks across the tracks of appellant, ” the court, on the trial, excluded all evidence from the jury tending to show that either the value of respondent’s road, or its capacity to do the bush ness of the company, would be impaired by the proposed crossing,—in short, the court ruled, in effect, that the respondent was only entitled to nominal damages. The ruling of the court in this respect, when formulated into a distinct proposition, seems to be this: A railway company may locate its tracks across the road of another company at any point it pleases, and without regard to the effect it will have on the value of the road to be crossed, or its capacity to clo the necessary and legitimate business of the company to which it belongs, and however serious the injury will be in these respects to the company whose road is thus crossed, it will be entitled to nominal damages only, provided the company proposing to do the injury will stipulate that it will make and maintain the crossing at its own expense. A law leading to such results can hardly be distinguished, on principle, from one which would permit a railway company to locate its depot grounds in the center of another’s farm upon the payment of a copper, or other nominal sum, provided the company would stipulate to relieve the owner of the farm of the burden of erecting and maintaining the depot buildings. That the enforcement of such a provision in the name of law would be simple confiscation but poorly disguised, is manifest. That no government in which' the distinction between meum and tuum is recognized would sanction or enforce a rule of that kind, may well be assumed.

It is claimed the ruling of the court below in the respects stated is sustained by Peoria and Pekin Union Railway Co. v. Peoria and Farmington Ry. Co. 105 Ill. 110, and Chicago and Alton Railroad Co. v. Joliet, Lockport and Aurora Ry. Co. id. 388. Before remarking upon these cases it is proper to call attention to the case of Lake Shore and Michigan Southern Ry. Co. v. Chicago and Western Indiana Railroad Co. 97 Ill. 506. A bill was filed by the appellant in that ease to enjoin the present appellant from prosecuting a condemnation suit commenced by it in the' county court of Cook county, to obtain the right of way across certain grounds and tracks of the complainant in the city of Chicago. The chief grounds relied upon for a perpetual injunction in that ease were, that the crossing of the complainant’s tracks by the defendant’s trains would so interfere with the running of complainant’s trains as to greatly embarrass its business, and subject it to immense losses, that could not be accurately determined or compensated for in an action at law. It was further urged upon the argument, that inasmuch as the Eminent Domain act did not make any provision as to the manner or place of crossing other roads, it was inoperative and void; that the legislature could not have intended to put it in the power of a company seeking a crossing over another’s tracks, to practically ruin the business of the latter, and consequently the value of its road as a property -; that such a power would be dangerous to the rights of other corporations and the interests of the public. This court, in the opinion filed in the case, conceded that a railway company seeking to cross the road of another company, has, under our statute, the right to determine both the place and manner of crossing, and in answer to the argument that such a power might be arbitrarily and wantonly exercised, said: “The security against a wanton and arbitrary exercise of this power upon mere whim or caprice, and that in all cases the point and manner of taking selected will be that least injurious to the owner and yet suited to the public necessity, is found in the fact that such corporations will be induced by considerations of their own best interests, to select, in making such crossings, that practical place and that practical mode which will be the least detrimental to the owner, because the corporation so selecting is required by law to make to the owner full compensation, jtnd the more injurious to the owner the place selected and the mode chosen, the greater will be the amount of necessary compensation to be paid.” This language, when considered in the light of the facts in that case, and the argument that was then pressed upon the court, leaves no doubt as to w'hat was meant. The obvious and palpable meaning of it is, that the appellee in that case would be liable to the appellant in the condemnation proceedings sought to be enjoined, for all damages directly resulting to it from the making or using of the crossing in question, whereby the value of its property was diminished or its facilities materially impaired for the transaction of its own business. To put any other construction upon what was said would be doing violence to the language then used.

We will recur now to the two cases above mentioned, and cited by appellee’s counsel as sustaining the view taken by the trial court. So far as the case of The Chicago and Alton Railroad Co. v. Joliet, Lockport and Aurora Ry. Co. is concerned, that simply holds that damages which result from the stopping of trains before making a railroad crossing, in conformity with the requirements of the statute, can not be treated as an element of damages in a condemnation proceeding, on the ground that the statute is a mere police regulation, liable to be repealed at any term. We certainly see nothing in this that sustains appellee’s position. Peoria and Pekin Union Ry. Co. v. Peoria and Farmington Ry. Co. supra, follows the other case in the respect we have stated. But it does something more. It expressly holds that in cases of this kind damages are recoverable for such injuries “as depreciate the value of the property, whether by taking a portion of it, or rendering the portion left less useful, or, in case of a railroad company or other corporate body, less capable of transacting its business,—such a hindrance and inconvenience as occasion loss, or diminish and limit its capacity to transact its business, by decreasing the power to transact as much, or by necessarily increasing the expense of what may be done, although not diminished. ” The test given in this case as to whether a particular inconvenience or hindrance, resulting from a crossing or other structure, should be treated as an element in the assessment of damages, is, does the inconvenience or hindrance in question necessarily abridge the owner’s capacity without increasing his expenses to transact an equal volume of business? If it does, it constitutes an element of damages, otherwise it does not, unless the value of the property itself is thereby depreciated, in which case that is always to be taken into the account in the assessment of damages.

The rule here given is sufficiently accurate for general purposes, and is but a repetition of what was said, in effect, in Lake Shore and Michigan Southern Ry. Co. v. Chicago and Western Indiana Railroad Co. 100 Ill. 21. The opinion in that case contains an elaborate review of the authorities on the very question now under consideration, and after a most thorough examination, aided by the arguments of some of the most eminent counsel in the State, a conclusion was reached, which was then, and is now, believed to be in consonance with simple justice, and in conformity with the constitution of the State, and an unbroken line of decisions of this court. The ease was afterwards most carefully reconsidered, on a petition for rehearing, and the conclusion theretofore reached was adhered to. That case distinctly holds, that where it is sought to take the property of a corporation in a proceeding of this kind, the same rule is to be applied in the assessment of damages as is applied to an individual under like circumstances, jjind the principles to govern the assessment in such a case are laid down in clear, unequivocal terms. In that as in this case, it was sought to limit the damages to the local direct physical injury to the company’s property, but the attempt was not successful. Upon this question it was then said: “The right of way is a right of user extending the whole length of the railroad, and any interference with it at any point, we think, may be considered in connection with and as affecting it as an entirety. We think it was competent to show as attempted, and to recover for damages to which the companies would be subjected by placing obstructions upon the right of way, whereby access to different parts of their lines would be interfered with, and their capacity for the transaction of business impaired or destroyed. * * * The limitation of the recovery of damages to those for the direct physical injury to the land was too restricted under the above cited decisions of this court, which are to the effect that there should be compensation for all such incidental loss, inconvenience and damage which may reasonably be expected to result from the construction and use of the crossing. ”

The authority of this ease has never been questioned, so far as we are advised, and the reasoning of the opinion is believed to be sound and unanswerable, outside of the fact that it is supported by the repeated decisions of this court. To say that the use of the subject of property may be limited or partially destroyed in the manner proposed, without affecting the right of property itself, is in plain terms a legal absurdity, for property itself, in a legal sense, is nothing more than the exclusive right “of possessing, enjoying and disposing of a thing, ” which, of course, includes the use of a thing. Suppose the-business of a railway company requires it to use a particular part of its road all the time, so that it could not stop without greatly deranging its business and* subjecting it to serious pecuniary losses. Now if, under these circumstances, a new company should be organized, and propose to run a number of tracks across that part of the old company’s line in constant use, and to conduct such a business on the new road as would occupy the crossing half the time, and consequently reduce the capacity of that part of the old company’s road just one-half, can it be doubted this would be an invasion of the right of property for which, under the constitution of the State, compensation would have to be made ? It is manifest that the value of a railroad property, outside of advantages of location and amount of business it controls, consists in the strength, permanency and durability of its structures, and its adaptability to, and capacity for doing railroad business. The conclusion would therefore seem irresistible, that whenever the proposed condemnation and subsequent user will injuriously affect such a property in either of these respects, the injury thus occasioned will form a proper basis for the assessment of damages in a proceeding of this kind.

It follows from what we have said, that the trial court erred in its rulings upon the admission, of testimony touching the question of damages, and for this error the judgment is reversed and cause remanded for further proceedings in conformity with this opinion.'

Judgment reversed.


author: Mr. Justice Craig

text:
    The City of Chicago v. Christiana Dalle.

      Filed at Ottawa November 14, 1885.

    l. Evidence—relevancy—of the proper test in that regard. In passing '.upon the relevancy of the particular testimony offered, it is not required that-it shall of itself absolutely prove a case; but the question is, whether it tends • to prove the fact or facts for which it is offered. If it does, it is competent ^01’tlle consid-erat;ion °í the jury.
    2. Negligence—injury from defective sidewalk—proof of condition of sidewalk—at what time. On the trial of an action against a city to recover damages for a personal injury caused by an alleged defective condition of a sidewalk, the issue presented is the condition of the sidewalk at the time of the injury, and the best evidence is proof of its condition immediately preceding the accident. But at the same time, it is competent to prove the condition of the sidewalk a few days before and a few days after the accident, as tending to establish its condition at the time of the accident.
    3. Same—notice of defective sidewalk, when presumed. It is the duty of a city to keep its streets and sidewalks in a reasonably safe condition for persons to travel over; and when a sidewalk on a public street gets out of repair so that it is unsafe to travel upon, and so remains a considerable time, notice of the defective condition of the walk will be presumed, and proof of actual notice will not be required. If out of repair and in a dangerous condition for such a length of time that the public authorities of the city, by the exercise of reasonable care, might have learned the fact, no actual notice need be shown, to make the city liable for an injury caused thereby.
    Appeal from the Appellate Court for the First District";— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.

      Mr. Clarence A. Knight, for the appellant:
    The question as to the condition of the sidewalk prior to the accident was at issue, and not. the question as to what its condition was after the accident. The court permitted, against objection, witnesses to testify that the sidewalk was repaired some three or four days after the accident, and allowed witnesses, on cross-examination, to be asked as to the same fact. The effect of such evidence is. to raise a collateral and immaterial issue. Railway Co. v. Clayberg, 107 Ill. 649.
    There must have been notice, actual or constructive, to fix any liability against the city, and in determining notice the jury must allow sufficient time to make repairs after notice. City of Peru v. French, 55 Ill. 317.
    Evidence of collateral facts, or such as are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute, is improper, as tending to prejudice the jury and mislead them, and because the opposite party, having no notice of such a course of evidence, is , not prepared to rebut it. 1 Greenleaf on Evidence, secs. 52, 448; Standish v. Washburn, 21 Pick. 227; Aldrich v. Pelham, 1 Gray, 510; Abbott on Trial Evidence, 584.
    The first of appellee’s instructions was bad, for the reason it entirely ignored the question of notice to the city of the defect in the walk. City of Gilman v. Haley, 7 Bradw. 349; Joliet v. Walker, 7 id. 276.
    A city is-liable for injuries caused by defective sidewalks when it knows, or can by an ordinary degree of care know, that they are out of repair and in a dangerous condition, and when sufficient time elapses after notice to make the necessary repairs before the injury is received. Bloomington v. Bey, 42 Ill. 503; Joliet v. Verley, 35 id. 58; Chicago v. Langlass, 66 id. 361; Chicago v. McCarthy, 75 id. 603.

      Messrs. Gary, Cody & Gary, for the appellee:
    The liability of the city is to be tested by the condition of the sidewalk at the time of the accident; but as evidence tending to show its condition at-that time, it was proper to show its condition shortly before and shortly after that time. It is not necessary that the evidence bear directly upon the issue. It is admissible if it tends to prove the issue. 1 Green-leaf on Evidence, secs. 51-53; Hough v. Cook, 69 Ill. 581; O. G. L. & C. Co. v. Graham, 35 id. 346; Eureka Coal Co. v. Braidwood, 72 id. 627.
    If the sidewalk was out of repair for a long time before the accident occurred, that constituted notice. Springfield v. Doyle, 76 Ill. 203; Chicago v. McCarthy, 75 id. 602.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action brought against the city of Chicago by Christiana Dalle, to recover damages for a personal injury on the 4th day of September, 1883, resulting from a fall on a sidewalk, at the corner of Centre and Howe streets. The plaintiff recovered a judgment for $1200, which was affirmed in the Appellate Court, to reverse which the city appealed.

There is a conflict in the evidence as to the condition of-the walk where the accident occurred. Quite a number of reliable witnesses, well acquainted with the condition of the walk, testified before the jury that it was in a good and safe condition at the time the plaintiff was injured. But we can not review the questions of fact. The facts were addressed to the consideration of the Appellate Court, and its decision is final. It only remains for us to consider the alleged errors which occurred on the trial of the cause, and if it appears that no substantial error was committed, the judgment will have to be affirmed.

On the trial the court permitted, against the objection of counsel for the defendant, several witnesses to testify that the sidewalk was repaired three or four days after the accident, and also allowed certain witnesses called for the defendant to be asked, on cross-examination, as to the repairing of the sidewalk after the accident, and this ruling is relied upon as error. It is plain that the liability of the city is to be determined by the condition of the sidewalk at the time the injury was received. If the sidewalk was then in a good and safe condition for persons to travel over, the city would not be liable; but if, on the other hand, the sidewalk was then out of repair and dangerous to travel upon, the city might be liable. But in passing upon the relevancy of the evidence it is not required that it should, of itself, absolutely prove a a case, but the question is, whether it tends to prove the fact or facts for which it is offered. If it does, then the evidence may be competent for the consideration of the jury, Here, the question at issue was the condition of the sidewalk when the plaintiff was injured, and the best evidence wrould be proof of its condition immediately preceding the accident; but at the same time, it was competent to prove the condition of the sidewalk a few days before and a few days after the accident, as tending to establish its condition at the time of the accident. We think the evidence was properly admitted, the alleged defect in question which caused the injury being a loose plank in the sidewalk.

It is next urged that the first instruction given for the plaintiff is erroneous, for the reason that under the instruction the jury could find the city guilty without regard to the question of notice of the defective condition of the sidewalk. It is not essential to a recovery, in a case of this character, that the evidence should show actual notice to the city. It is the duty of a city to keep its streets and sidewalks in a reasonably safe condition for persons to travel over, and when a sidewalk on a public street gets out of repair, so that it is unsafe to travel upon, and so remains for a considerable time, notice of the defective condition of the walk will be presumed. City of Springfield v. Doyle, 76 Ill. 202, is a ease in point on the question. There was evidence in the case that the defect in the sidewalk which existed at the time the plaintiff was injured, had been in existence for a sufficient time prior to the injury that the city, if it had used ordinary diligence, might have known of the defect. Under such circumstances actual notice was not required, and the instruction was not calculated to mislead the jury. But if the instruction complained of was defective, it is apparent that the jury was not misled, as the second of plaintiff’s instructions in express terms directs the jury, that to enable plaintiff to recover they must find that the sidewalk had been out of repair and in a dangerous condition for such a length of time that the public authorities of the city, in the exercise of reasonable care, ought to have discovered the fact.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Per Curiam :

text:
    The Empire Car-Roofing Company v. Silas N. Macey.

      Filed at Ottawa November 14, 1885.

    1. Attachment—;judgment upon constructive service—as to amownt. In a suit by attachment, even where there is no personal service or appearance by the defendant, the court may, upon satisfactory proof, enter a judgment in favor of the plaintiff for the sum claimed in the affidavit for the writ, and accruing interest.
    2. G-abnishment—how far a gcurnishee may question the judgment against the attachment debtor. In the case of garnishment in a proceeding by attachment, if the judgment against the defendant in attachment is void, it may be attacked by the garnishee; but if the court had jurisdiction, its errors and irregularities can-only be called in question by the defendant in the original attachment proceeding. The errors in the rendition of that judgment are matters which do not concern the garnishee.

      3. Same—of the pleadings. Where the garnishee in his answer admits an indebtedness from him to the original debtor, but sets up special matter in defence, it is not necessary for the attaching creditor to file a replication specifically denying the matters set up, to defeat a recovery against him. It is sufiacient to file a general replication that the garnishee has not truly answered and disclosed. The statute dispenses with the formality of special pleading.
    4. Same—answer of garnishee not under oath—as evidence. Where a garnishee has answered under oath admitting his indebtedness, and afterward, in answer to further interrogatories, sets up new matter in avoidance of his liability, not under oath, the answers not under oath are not evidence to prove the facts therein stated.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. John Cf. Rogers, Judge, presiding.
    This suit was brought in attachment by Silas N. Macey, surviving partner of Macey & Brown, for the use of Miss Eva Brown, against the St. Louis. Galvanizing Company. The affidavit for the writ stated the indebtedness to be “in the sum of at least $2500, ” upon a balance of an account for goods sold, etc. Judgment by default was rendered against that company for $2693.75.
    The interrogatories to the appellant, the garnishee, were in the usual form, as to money and property of the defendant in the hands and custody of, or owing by, the garnishee, and in addition there was a series of questions in regard to the existence, terms and conditions of a contract between the defendant and the garnishee. To the several answers the plaintiff filed a general replication, as follows: “And now comes said plaintiff, who sues for the use, etc., and- says that the said Empire Car-Boofing Company hath not, either in its original or additional answers filed herein, truly discovered the lands, tenements, goods, chattels, moneys, choses in action, credits and effects of the said 8t. Louis Galvanizing Company, and the value thereof, in its possession, custody or charge, or from it due and owing at the time of the service of the writ herein, or at any time after, or which shall thereafter become due to the said St. Louis Galvanizing Company, and this he prays may be inquired into pursuant to the statute in such case made and provided. ”
    Messrs. G. W. & J. T. Kretzinger, for the appellant:
    The St. Louis Galvanizing Company not being personally served, and not appearing, the judgment against it. could exceed the amount stated in the affidavit for the attachment. Rowley v. Berrian, 12 Ill. 198; Hichins v. Lyon, 35 id. 150.
    The garnishee has the right to inquire into the validity of the proceeding when the court does not acquire jurisdiction over the person of the defendant in attachment by personal service or appearance. Pierce v. Carleton, 12 Ill. 358.
    A contingent liability is not subject to garnishment. Waples on Attachment and Garnishment, 366; Wilder v. Shea, 3 Bush, 128; Thorp v. Preston, 42 Mich. 511; Mayor v. Potomac Ins. Co. 58 Tenn. 296; Bishop v. Young, 17 Wis. 46; Webber v. Doran, 70 Maine, 140.
    The answer of a garnishee, until contradicted or disproved, must be considered as true. Railroad Co. v. Killenberg, 82 Ill. 295; Lashear v. White, 88 id. 43; Pierce v. Carleton, 12 id. 365; Holton v. Railway Co. 50 Mo. 151.
    The burden of proof to charge a garnishee is on the plaintiff. Farwell, etc. Co. v. Howard, etc. Co. 26 Iowa, 385.
    Even if the plaintiff had denied the new matter or affirmative defences relied upon in the answers, no testimony was offered by the plaintiff to controvert the 'answers, and therefore the garnishee should have been discharged. Morse v. Marshall, 22 Iowa, 290; Wilhelmi v. Haffner, 52 Ill. 222; Hewett v. Wager Lumber Co. 38 Mich. 705.
    The answers of the garnishee disclose the fact that the St. Louis Galvanizing Company ceased to exist as a corporation long before this suit was brought, and that the contract between the garnishee and the St. Louis Galvanizing Company had been assigned and transferred before such dissolution occurred, by the galvanizing company to Macey & Brown, and by Macey & Brown to one A. R. Brown. These averments were not denied or their contradiction by testimony attempted, and therefore the answer in this regard is conclusive, which made it impossible for the court to enter a valid judgment against the galvanizing company or against the garnishee. Holton v. Railway Co. 50 Mo. 151; Fay v. Sears, 111 Mass. 156; Sexton v. Amos, 39 Mich. 698; McNiell v. Roache, 49 Miss. 442; Wilhelmi v. Haffner, 52 Ill. 223; First National Bank of Clinton v. Bright, 126 Mass. 537; Northam v. Cartright & Co. 10 R. I. 20.
    Mr. E. A. Otis, for the appellee:
    . Judgment for the amount named in the affidavit, with .accruing interest, is proper. Rowley v. Berrien, 12 Ill. 202; Tunison v. Field, 21 id. 107; Forsythe v. Warren, 62 id. 68.
    In the absence of a bill of exceptions giving the evidence, it will be presumed the evidence authorized the allowance of interest. Miner v. Phillips, 42 Ill. 123; Henry v. Holloway, 78 id. 356; Motsinger v. Coleman, 16 id. 71.
    The garnishee has no right to question the amount of the judgment against the original defendant. His right in that regard is limited to the question of jurisdiction. Pierce v. Carleton, 12 Ill. 358.
    When the answer of a garnishee is sufficient to charge him, he must show enough to discharge himself. McCoy v. Williams, 1 Gilm. 584; Crain v. Gould, 46 Ill. 293.
    When the garnishee claims that the moneys of the judgment debtor are affected by a trust, the onus is on him to show the trust, and this can not be shown by a deed of assignment made out of the State, and not shown to be valid anywhere. Waples on Attachment, 377; Frank v. Frank, 6 Mo. App. 589.
    If the garnishee alleges an assignment of the debt he owes, he must show its good faith. Wilhelmi v. Haffner, 52 Ill. 222.
   Per Curiam :

This action was an original attachment in the circuit court of Cook county, brought by Silas N. Macey, surviving partner of the firm of Macey & Brown, against the St. Louis Galvanizing Company, a corporation organized under the laws of Missouri. The appellant, the Empire Car-Roofing Company, was summoned as garnishee. On the 2d day of October, 1884, a judgment by default was rendered against' the St. Louis Galvanizing Company, for $2593, the amount sworn to be due in the affidavit for the attachment, with interest from the date of the affidavit until the day judgment.was entered. The St. Louis Galvanizing.Company never excepted to this judgment. The evidence upon which it was rendered was not preserved by bill of exceptions, and the judgment remains in full force in the circuit court, where it was rendered. After the recovery of the judgment, interrogatories were filed by appellee, and answered by the garnishee under oath. At a later date additional interrogatories were filed, and answered by the garnishee, but not under oath. An issue was formed by filing replication to the answers of the garnishee, denying that the garnishee had truly discovered the lands, tenements, goods, chattels, moneys, choses in action, credits and effects of the defendant in attachment, which denial is in the language of section 7, chapter 62, of the Revised Statutes of 1874. A jury was waived, and a trial had before the court, resulting in a judgment against the garnishee for $1499.50. To reverse this judgment the garnishee appealed to the Appellate Court, where the judgment was affirmed, and not being satisfied with the decision, the garnishee has appealed to this court.

This record presents no questions of great importance except questions of fact, which have been eliminated from the record and finally settled by the judgment of affirmance in the Appellate Court.

It is claimed that the court had no power to enter a judgment against the defendant in the attachment suit for a-larger sum than was shown to he due by the affidavit filed for the attachment. The judgment was for the amount stated in the affidavit, with accruing interest. In attachment cases, where there is no appearance by the defendant, the court may, upon satisfactory proof, enter a judgment for the plaintiff for the amount claimed in the affidavit, and accruing interest. Rowley v. Berrian, 12 Ill. 198, is in point on this question.

It is contended that it is the right and duty of the garnishee to inquire into the validity and regularity of the proceedings in the attachment' case. If the proceedings are void, they may be attacked by the garnishee; but if the court had jurisdiction, its errors and irregularities can only be called in question by the defendant in the original attachment, in a direct proceeding. (Pierce v. Carleton, 12 Ill. 358.) Here the court had jurisdiction, and the judgment was not void, and if errors intervened, they can not be inquired into by the appellant, who was a garnishee in the circuit court.

It is also said that no evidence was offered or considered by the court as to the amount due from the galvanizing company to Many & Brown on the account sued upon in the original attachment, and that the original judgment was unauthorized. What the evidence may have been the record does not disclose. Whether it was sufficient or insufficient, or whether errors intervened, are matters which do not concern this appellant. The galvanizing company, and it alone, is interested in the irregularities, if such occurred, in the rendition of the original judgment. As said before, if the court had jurisdiction, which it had, its errors can not be inquired" into on an appeal brought by the garnishee.

Much has been said in the argument in regard to the weight and character of the evidence upon which the court rendered judgment against the garnishee. These were proper considerations to be addressed to the Appellate Court, but they can not be considered here.

Certain matters of defence were relied upon by appellant, and set up in answer to the interrogatories, as affirmative defences, so-called; and it is claimed that these matters of defence were not denied or traversed by the replications, and as no proof was offered to contradict them, the answers should be taken as true. It appears from the evidence, that the indebtedness from, the garnishee to the St. Louis Galvanizing Company arose upon a written contract between the two parties, dated December 2, 1879, under which the latter sold to the former its interest and title in certain letters patent for improvements in car roofs, for which a certain sum was paid down, and the Empire Car-Roofing Company agreed to pay in addition one dollar for- each iron car roof it should sell thereafter, until ten thousand five hundred were sold. It seems from the record, that on the 28th day of June, 1883, appellee filed certain interrogatories to be answered by the garnishee, which were answered, under oath, on the 16th day of July. The answer discloses a certain sum due the defendant company at the time of the service of the writ. On the 18th day of September following, appellee filed additional interrogatories, and on the 8th day of October the garnishee filed an answer, but not under oath, admitting that since its former answer an additional sum has become due to the galvanizing company for roofs sold by it. The garnishee also sets up in the answer that the St. Louis Galvanizing Company, the defendant in attachment, has been dissolved, and does -not exist as a corporation; that the garnishee is informed and believes another corporation or person claims an interest in the patent conveyed to it by the galvanizing company, and until this adverse interest is settled, the garnishee is entitled to hold the balance due on the contract, for protection as against damages and costs that may occur on the settlement of the claim, etc. On the 10th day of September, 1884, additional interrogatories were filed, and answered on the same day, but not under oath. To the answer to each set of interrogatories the appellee replied as follows: “And now comes said plaintiff, who sues for the use of said Eva Brown herein, and says that the said Empire Car-Roofing Company hath not, either in its original or additional answers filed herein, truly discovered the lands, tenements, goods, chattels, moneys, choses in action, credits and effects of the said St. Louis Galvanizing Company, and the value thereof, in its possession, custody or charge, or from it due and owing at the time of the service of the writ herein, or at any time after, or which thereafter shall become due to the said St. Louis Galvanizing Company; and this he prays may be inquired into pursuant to the statute in such case made and provided.” This replication, it is insisted, is not a denial of the facts set up in the answers of the garnishee upon which it relies to avoid the payment of the amount due upon the contract made with the defendant in the attachment, and hence it is claimed that the matters set up in avoidance are to be taken as true.

As we understand the statute, it was not necessary to file a replication specifically denying the matters set up in the answer, upon which the garnishee relied to defeat the appellee’s action. Section 7, chapter 62, of the Revised Statutes of 1874, is the only section of the statute that has any hearing upon the question of forming an issue in such cases, and the replication filed is in the language of that section of the statute, and-all that the statute seems to require. And where such a denial of the answer is filed, the statute declares that the cause shall he tried without the formality of pleading. Under this section of the statute special pleading seems to be dispensed with, and it is only necessary for the plaintiff to file a reply to the answers, alleging that the garnishee has not truly discovered the lands, etc., in the language of the statute, of the defendant in the original attachment. It will be observed that section 5 of the same statute requires the answer of the garnishee to be under oath. In the second and third answers of the garnishee, in which it set up the matters in avoidance, this requirement of the statute was not observed, and we are not aware of any authority which holds • that an answer not under oath can be used as evidence to prove the facts therein set up. In either view there is no ground for holding that the matters of defence set up by the garnishee entitled it to a judgment.

Other questions have been raised and discussed in the argument, but they pertain to matters of fact which do not arise here.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    James W. Converse et al. v. Ann Rankin et al.

      Filed at Ottawa January 25, 1886.

    1. Cloud upon title—tax title—where there has teen an effort to redeem. A person whose land had been sold for taxes, in proper time attempted to redeem it from the sale, and paid the amount required of him by the officer entitled to receive redemption money, and received a certificate of redemption, and when notified of a trifling deficit, sought in good faith to ascertain the amount so as to pay the same. He was referred to the purchaser, who promised to make and deliver a statement of such deficiency, if any, which he failed to do, but took out a tax deed: Held, a court of equity would set aside such deed as a cloud on the title of the person seeking to make redemption, upon payment of the deficiency.
    2. Costs—in chancery—discretionary. Under the statute (Rev. Stat. chap. 33, see. 18,) the matter of costs, in most chancery cases, is within the discretion of the court. Where one wrongfully takes out a tax deed, it is proper, on bill to set the same aside as a cloud on title, to award costs against him.
    Appeal from the Circuit Court of Cook county; the Hon. T. A. Moran, Judge, presiding.

      Mr. Augustus N. Gage, for the appellants:
    The evidence is not consistent with appellees’ theory of an honest effort' to make a redemption. Gage v. Scales, 100 Ill. 218; Gage v. Parker, 103 id. 528.
    There is no evidence to warrant the court in its finding that $20.11 was the proper amount to be paid as a condition of relief.
    The decree entered is inequitable. The tender or deposit not being sufficient, appellees should have been required to pay interest. In any view, appellants should not be required to pay the costs of the suit. Gage v. Busse, 102 Ill. 592.
    Mr. Arthur D. Rich, for the appellees:
    • When a party seeks to redeem his land from tax sale, and calls on the proper officer for that purpose, it is the duty of the officer to state the sum required to redeem; and his mistake or miscalculation will not defeat the redemption certificate, and the officer must make good the deficiency to the holder of the certificate of purchase. Gage v. Scales, 100 Ill. 218; Cooley on Taxation, 367; Bubb v. Tompkins, 47 Pa. St. 359; Dietrich v. Mason, 57 id. 40.
    In chancery, the matter of costs is left to the discretion of the court. Rev. Stat. chap. 33, sec. 18; Carpenter v. Davis, 72 Ill. 14; Gage v. Chapman, 56 id. 311.
   Mr. Justice Scott

delivered the opinion of the Court:

This bill was- originally, brought by Ann Rankin, against James W. Converse, and William K. Reed, in the circuit court of Cook county, and was tq remove a cloud from the title to the property in controversy, which, it is alleged, was created by a tax deed issued by the county clerk to defendant Converse, and which deed was duly recorded by the proper officer in the county where the land is situated. Afterwards the bill, by leave of court, was so amended as to make Laura H. Stuart and Mary Ellen Gray co-complainants with Ann Bankin.

The principal ground for relief, as stated in the bill, is that complainant, in good faith, deposited with the clerk of the county court a sum they were advised by the officer transacting the business of the office, was sufficient to redeem the premises from the tax sale to defendant Beed, and received the usual certificate of redemption, and that after it was learned it was claimed the amount deposited was insufficient to effect a. legal redemption, complainant, in like good faith, endeavored, through her agent, to ascertain whether any deficit in fact existed, and if so, to pay the same; but it is averred complainants could not find out what it was, and were therefore unable to make any further deposit. All this, it-is alleged, was done before .the deed was issued. Both defendants answered the bill, and on the hearing the court decreed relief upon condition complainant should pay defendant the amount found to be necessary to complete the redemption.

It is obvious from an inspection of the record in this case, complainant undertook, in the utmost good faith, to redeem her property from the tax sale, and deposited with the county clerk the sum required of her for that purpose, in accordance with the provisions of the statute. Thereupon the clerk issued to her the usual certificate of redemption. Up to this time complainant had done everything the law required her to do to redeem her property from the tax sale. After that was done, she rested in the confident belief the property had, in fact and in law, been redeemed. Subsequently complainant was notified the sum deposited was insufficient to effect a legal redemption. It seems it was claimed the deputy who had such matters in charge in the county clerk’s office, in making up the aggregate sum necessary to redeem, made a mistake. The error, if "any existed, was trifling in amount, being a sum less than two dollars. The next day after receiving notice of the alleged deficiency in the amount deposited, she sent her son-in-law to the county clerk’s office to look after the matter, but he could not ascertain from any one in the office that any deficiency existed. He was advised by them to go to defendant Eeed, who was the purchaser at the tax sale. That the witness did, and took with him the witness Hubbard. His testimony is to the effect he told Eeed he learned some deficiency in the redemption was claimed, and asked him if such was the case. Eeed said he thought there was some deficiency, but he was busy and could not look into it at that moment. Witness then said to him, “If there is any deficiency in this amount I want to pay it up at once, ” to which, he says, defendant Eeed replied, “I can not stop now, but will make a statement of that deficiency, and give it to you or send it to you. ” The witness Hubbard, who is totally disinterested, corroborates the witness Smith in every particular, and adds, that when they were about to leave the office, he said, “Now, Mr. Eeed, see that you do this, as it is a little matter, and Mr. Smith wants to pay it.” This all transpired before the deed was issued. There is no pretence defendant Eeed ever sent to complainant, or her agent, any statement of the amount he claimed to be due to effect a valid redemption.

There is a good deal of conflict in the evidence as to what occurred between the parties, but it is thought the weight of evidence is as the circuit court found it. There is certainly no reason to be dissatisfied with the findings of the facts, as was done by that court. Assuming the facts to be as the evidence tends to establish them, and as the trial court found them to be, the case comes clearly within the rule déclared in Gage v. Scales, 100 Ill. 218. It was there held, if a party attempt to redeem, and does all he was required to do by the officers entitled to receive the redemption money, in such ease the sale will be discharged, even though in consequence of a mistake of the officer he may have paid less than the proper amount, and on payment by the owner of the deficiency. That is precisely the case here. Complainant paid to the proper officer the full amount required of her to redeem the property, under the provisions of the statute. This fact in the case is not controverted. As before remarked, the evidence "warrants .the belief that after it was claimed the amount deposited was insufficient to effect the redemption, complainant did everything she could reasonably do to correct the mistake that had occurred. She was in no way to blame for the mistake made by the officer, nor was she guilty of any laches in trying to correct the error alleged to exist. She caused application to be made to the proper officer in the county clerk’s office at once after receiving notice, but that officer was unable to detect any error. Her agent was advised to apply to the purchaser himself, which he did at once. It is in evidence he said he was then too busy to look into-the matter, but would do so and make him a statement, and either give it to the agent or send it to him. That was never done. It seems the owner did everything she could reasonably do to redeem her property, and was in no default. It follows, therefore, the taking of the tax deed by Reed in the name of Converse was wrongful, and cast a cloud upon the title of complainants’ property, which they were entitled to have removed upon terms which might be deemed equitable by the court.

Under a statute of this State, (Rev. Stat. 1874, see. 18, chap. 33,) the matter of costs in most chancery cases is within the discretion of the court. That discretion, it is thought, under the facts in this case, was well exercised in awarding costs against defendants.

The decree of the circuit court must be affirmed.

Decree affirmed.