text:
    St. Louis National Stock Yards v. Ollie Burns, Adm’x, etc.

    1. Master and Servant — Duty of the Master to Furnish Reasonably Safe Machinery, etc. — Railroads.—The law which requires a railroad company to furnish reasonably safe machinery and to keep its tracks, engines, cars and appliances in reasonably safe repair, has no application to such engineering problems as are involved in the construction of its yards.
    2. Railroads — Risks Assumed by an Employe Who Enters the Service of a Railroad Company in Its Yards. — A person who enters the service of a railroad company in any work connected with the making up or moving of trains in its yards, assumes the risks of the condition of things necessarily attendant upon the making up and moving of trains in such yards.
    - 3. Ordinary Care — A Requisite of a Recovery. — In an action for damages resulting from the death of an employe of a railroad company, before recovery can be sustained, it must be shown that the deceased was, at the time of the injury which caused his death, in the exercise of due care and caution for his own safety.
    Trespass on the Case. — Death from negligent act. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the August term, 1900.
    Reversed with a finding of facts.
    Opinion filed March 11, 1901.
    Rehearing denied.
    Geo. F. McNulty and Percy Werner, attorneys for appellant.
    F. C. Smith and M. Millard, attorneys for appellee.
   Mr. Presiding Justice Creighton

delivered the opinion of the court.

This was an action in case, in the City Court of East St. Louis, by appellee against appellant, to recover damages resulting from the death of William Burr, husband and intestate of appellee. Trial was by jury. Verdict and judgment in favor of appellee for $5,000.

The declaration charges, in substance, that appellant was conducting certain stock yards, and had in its use for that purpose divers railway tracks, locomotive engines, cars and trains; that appellee’s husband was in appellant’s employ as a switchman; that it was his duty to assist other servants of appellant in operating a certain switch engine; that it was the duty of appellant to maintain railway tracks, engines and cars reasonably suitable for the use made of them, to furnish a sufficient number of competent servants to carry on its business with reasonable safety to its employes, and to provide and enforce suitable rules for the government of its servants while engaged in such work; that appellant, not regarding such duty, had in use two certain railway tracks which were too close together and therefore dangerous, failed to furnish a sufficient number of competent servants to handle and switch the cars and trains Avith safety, and failed to provide and enforce suitable rules for the government of its employes; and avers that in consequence of such negligence, the deceased, Avhile in the exercise of due care and caution for his own safety, was struck by a train of cars carelessly and improperly driven by appellant and killed. To this declaration appellant pleaded not guilty.

The trial court instructed the jury that there was no eAridence tending to support the charges in the declaration that appellant had failed to furnish a sufficient number of competent servants, or that appellant had failed to provide and enforce suitable rules. The state of the record shows that this instruction was fully Avarranted. The only remaining charges in the declaration are, that the tracks were too close together, and that the train which struck deceased was carelessly and improperly driven.

The two sets of tracks which are alleged to have been too close together were tracks of standard gauge, running straight and parallel Avith each other for a distance of 200 feet. The space between the tracks was six feet, three inches and a half. The space between the car onto the side of Avhich deceased was hanging, and the passing car that struck him, was from eighteen to twenty-four inches. Deceased was thirty-eight years old, was an experienced sAvitchman, had worked for appellant in the same capacity oxrer the tracks complained of for about six months and the tracks had sustained the same relative position for at least a month immediately prior to the injury. The injury occurred in broad daylight and there was nothing to obstruct the view of the approaching train.

There were but two eye-witnesses to the injury, Joseph J. Kropp, the fireman on the engine of deceased’s crew, and one J ohn Evans, a government employe who supervised the cleaning and disinfecting of stock cars. Mr. Kropp was a witness on behalf of appellee, and testified in substance:

“I knew Burr; he was working with us. I was in the service of the St. Louis Hational Stock Yards when he was killed, and still am; was firing one of the engines; was on engine Ho. 2, with Mr. Burr’s crew. I saw Burr killed; a Swift refrigerator car struck him. The car was being handled by the other crew on the adjoining track. But one car was attached to our engine, and he was riding on that car. It was a barrel car, high and long. I saw the Swift refrigerator car strike him as he was on the side of the barrel car; I saw him when he jumped on; it was just that quick (snapping his fingers); he was knocked off as soon as he jumped ón. I did not notice the other cars coming. There was nothing to prevent me and Burr from seeing these cars as they came down on that adjoining track; the tracks were parallel to each other. In my judgment there were two feet or eighteen inches between the cars. I nevór measured the distance between the tracks. When Burr was knocked off he was hanging out over the car, the full length of his arm, standing on the stirrup; he was looking straight toward the car; he Was not looking in the direction in which the car was going. He was on my side of the engine. There was nothing to prevent him from jumping on the engineer’s side. He could have jumped up there, of course, and there was a ladder on the rear end of the car and he could have jumped up there. There was nothing between our train as it went west with that car, and the other train as it came east, to prevent Burr from seeing it as it came up; the tracks were parallel along there; they were parallel for about 200 feet; they were straight and parallel, and the view was unobstructed. I hollered, to my engineer. I saw of course that he was going to be struck, and of course I hollered to the engineer. I saw it because the two cars were passing one another, and he was hanging out so far; he could have straightened himself up and escaped being hurt; there was room enough at the time; he could have straightened himself up and been clear. He did not see the other car, I guess. If he had been on the lookout, looking" ahead, he could have straightened himself up, simply kept along the side of the car and allowed the other car to pass behind him, without touching him; there was ample room for that.”

The account given by this witness is more favorable to appellee than that of the other eye-witness.

In C. & E. I. R. R. Co. v. Driscoll, 176 Ill. 330, it is said :

“ The manner of constructing a railroad is an engineering question. A railroad company can not be required to adopt any particular method of construction. * * * Public policy does not require courts to lay down any rule as to the manner of construction of railroads. * * It is not a question for a court to submit to a jury whether the manner of construction of a railroad is proper o'r not.”

And in Randall v. B. & O. R. R. Co., 109 (U. S. 478, it is said :

“ A railroad yard where trains are made up, necessarily has a great number of tracks and switches close to one another, and any one who enters the service of a railroad company in any work connected with the making up or moving of trains, assumes the risks of that condition of things. ’

The law which requires a railroad company to furnish reasonably safe machinery, and to keep its tracks, engines, cars and appliances in reasonably safe repair, has no application to such engineering questions as the one involved in this case. We are of opinion that the death of appellee’s intestate was the result of dangers and risks incident to the business in which he was engaged.

And further, to entitle appellee to recover she must show by a preponderance of the evidence that her intestate was at the time and on the occasion of the injury which caused his death, in the exercise of due care and caution for his own safety. He could not have been in the exercise of due care and at the same time guilty of negligence which contributed to the injury. Appellee’s counsel contend that this was a question of fact for the jury. In City of Belle-ville v. Hoffman, 74 Ill. App. 503, we discussed at some length as to when negligence and due care are questions of fact for a jury and when questions of law for the court, and will content ourselves with referring to that case, and not stop to rediscuss that subject here. For the purposes of this case it is sufficient to say, as we did in I. C. R. R. Co. v. Batson, 81 Ill. App. 142:

“ Where there is no evidence tending to show care and caution, and no excuse or reason appears for their absence, then the allegation in the declaration of due care and caution is not proved. Being a material allegation and not proved, the instruction to find for appellants should have been given.”

The due care and caution required of appellee’s intestate, by the law, was commensurate care and caution, and we are unable to find any evidence in this record, or to find any fair inference from any evidence, tending to show that deceased exercised such care and caution, nor does any reasonable excuse for a failure to' do so appear. The trial court erred in not granting appellant’s motion to exclude all the evidence and direct the jury to find appellant not guilty. The conclusions thus far reached render it unnecessary and unprofitable to discuss the many remaining interesting questions raised. The judgment of the Circuit Court is reversed.

Finding of Facts. —The court finds as facts in this case, that appellee’s intestate came to his death as the result of dangers and risks incident to the business in which he was engaged. And further, finds that at the time and on the occasion of the injury which caused his death, he was not in the exercise of due care and caution for his own safety, and that his failure to exercise such care and caution contributed to the causes which produced the injuries of which he died.


source: Caselaw Access Project

author: Opinion per Curiam.

license: Public Domain

text:
    Harry Smith and Nellie S. Smith v. William L. Patton, Trustee in Bankruptcy of the Estate and Effects of Harry Smith.
    1. Appellate Court Jurisdiction— Where a Freehold is Involved. —Where the question between the appellant and the appellee is one involving the title to lands, a freehold is necessarily involved and the Appellate Court can not do otherwise than to dismiss the appeal.
    2. Freehold — When Involved Within the Meaning of the Constitution. — A freehold is involved within the meaning of the constitution and statute, where the necessary result of the judgment is that one party gains and the other loses a freehold estate, or where the title is so put in issue by the pleadings that the determination of the case necessarily requires a decision of such issue.
    3. Same — When Involved in a Proceeding in Chancery. — A. proceeding by a bill in chancery to transfer the legal ‘title to real estate from one person to another, involves a freehold; as where a bill is filed by a trustee in bankruptcy to set aside a fraudulent conveyance, alleged'to have been executed by the bankrupt.
    4. Same — Poiver of the Appellate Court to Investigate the Question. —The Appellate Court has jurisdiction to investigate the question as to whether a freehold is in fact involved in a pending litigation, and having determined the question in the affirmative, its jurisdiction over the case ceases with its order of dismissal.
    Bill to Set Aside a Fraudulent Conveyance. — Appeal from the Circuit Court of Edwards County; the Hon. Prince A, Pearce, Judge, presiding. Heard in this court at the August term, 1901.
    Dismissed.
    Opinion filed October 21, 1901.
    R. P. Hanna, H. J. Strawn and J. M. Cambpell, attorneys for appellants.
    L. W. Low, Jr., and C. H. Patton, attorneys for appellee.
   Opinion per Curiam.

This was a bill in chancery in the Circuit Court of Edwards County, by appellee,, as trustee in bankruptcy of the estate and effects of appellant Harry Smith, bankrupt, to recover from appellant Nellie S. Smith, certain real estate and personal property. The real estate consists of a large number of lots and tracts of lands situate in the counties of Edwards, Clinton and Wayne, in the State of Illinois. These lands were conveyed by one Susan Smith to appellant Nellie S. Smith, and by and through this deed Nellie S. Smith claims to be the absolute owner in fee of all said lands. Appellee claims that prior to and at the time of the conveyance from Susan Smith to Nellie S. Smith, and prior to and at the time that Harry Smith was adjudged a bankrupt, that he was the equitable' owner of these lands, and that by and through the proceedings and judgment in bankruptcy, appellee, as trustee in bankruptcy of the estate and effects of said Harry Smith, succeeded to Harry Smith’s title. Appellee claims title through Harry Smith, and appellant Nellie S. Smith claims title in fee through Susan Smith.

Appellee sets up and avers in his bill:

“ That on the 28th day of December, A. D. 1899, a petition was filed in the District Court of the United States for the Southern District of Illinois, by said Harry Smith, praying that the said Harry Smith be declared and adjudged a bankrupt, in accordance with the act of Congress of the United States, approved July 1, 1898, in such case made and provided. That thereafter such proceedings were duly had in said matter of bankruptcy, in the said United States Court, that the said Harry Smith was thereafter, on, to wit, the 28th day of December, 1899, by an order of said court, duly adjudged a bankrupt; and thereupon the said cause in bankruptcy was then and there by the said United States District Court duly referred to Hon. W. E. Shutt, as referee in bankruptcy of said estate and effects of the said Harry Smith, bankrupt, for further proceedings in said cause in bankruptcy, in accordance with the act of Congress aforesaid.

“ And thereupon the said referee in bankruptcy issued his notice, according to law, appointing a meeting of the creditors of said bankrupt to prove their debts and choose a trustee of the estate of said bankrupt, at a court of bankruptcy to be holden on the 18th day of January, A. D. 1900, at 10 o’clock a. m., before the said referee in bankruptcy, at his office in the United States Court House, in the city of Springfield, in said Southern District of Illinois, as provided by law. That afterwards, to wit, on the 18th day of January, A. D. 1900, a meeting of the creditors of said bankrupt was held before the said referee in bankruptcy, at the time and place appointed in the notice thereof aforesaid, at which time and place claims were filed and proved and allowed before said referee * * * against the estate of said bankrupt. * * * And thereupon, at the same time and place, your orator was by the said creditors of said bankrupt, duly chosen and elected as trustee in bankruptcy of the estate and effects of the said Harry Smith, bankrupt, and .then and there gave his bond and took the oath of office; by means whereof and by the operation of law, the said estate and effects of the said bankrupt then and there thereby became assigned to and vested in, your orator as trustee aforesaid. * * * Your orator further shows unto your honor, that on the 19th day of April, A. D. 1899, and up to and at the time of the filing of said petition in bankruptcy, the said Harry Smith was the equitable owner of the following described * * * real estate, to wit: (Here follows the description of a large number of lots and tracts of land.) But the legal title to which said real estate was and is in the defendant ¡Nellie S. Smith * * * and the said ¡Nellie S. Smith received title to said real estate by deed from Susan Smith.” (Here follows a lengthy statement charging that the conveyance was procured to be made to ¡Nellie S. Smith by Harry Smith, for the purpose of defrauding his creditors.) Then follows: “ Your orator, as trustee aforesaid, further avers that by the provisions of the act of Congress, approved July 1, 1898, to establish a uniform system of bankruptcy, your orator became by operation of law entitled, as such trustee in bankruptcy of the estate of said Harry Smith, to the title and possession of all the property of the said Harry Smith, bankrupt, and to all of the property which was .procured by him to be conveyed in fraud of his creditors, as aforesaid, and entitled to sue for and recover the same, as assets of the said bankrupt.”

To this bill appellants make answer in which they admit the proceedings and adjudication in bankruptcy and appointment and qualification of appellee as trustee, and his successorsbip to the title of all the estate of the bankrupt, Harry Smith, as set up in appellee’s bill. They deny all the charges of fraud, and aver that one John Smith was the owner of a large amount of real estate, including all the real estate in question; that he left a will which was duly probated, and that by such will Susan Smith, his wife, took title to all of said real estate and other, and that she conveyed to appellant Nellie S. Smith the portion in controversy in this case, and further aver:

“ Respondents most expressly deny that the property in said bill described was in fact or in equity the property of said Harry Smith, or that he ever at any time had any legal or equitable interest in the same.”

Upon final hearing the Circuit Court, among other things, adjudged and decreed as follows:

“ It is further ordered, adjudged and decreed by the court ' that the said deed conveying the real estate hereinbefore described from Susan Smith to said defendant Nellie S. Smith * * * became and the same is hereby declared to be fraudulent and void, and that the same be set aside and annulled as against the rights of the complainant as trustee in bankruptcy as aforesaid, and that the legal title to the said real estate in said deed described be vested in the said complainant as trustee as aforesaid, and that the said defendant Nellie S. Smith convey the same to the said complainant as trustee, as aforesaid, by good and sufficient deed of conveyance, to be executed and delivered within thirty days from the date hereof.”

The errors assigned upon the record call for a review of the entire decree.

We have not attempted to state this case with any reference to the merits of the controversy, but only with reference to the character of the estate involved; for if it be found that there is a freehold involved in the case as disclosed by the record, then we are wholly without jurisdiction, and have neither the right nor the power to determine the case on its merits, or to render any judgment other than to dismiss the appeal. Where the question between appellant and appellee is one involving title to lands, a "freehold is necessarily involved; the Appellate Court can not do otherwise than dismiss the appeal taken by appellant to that court. Eastman v. Littlefield, 164 Ill. 254.

“A freehold is involved within the meaning of the constitution and statute where the necessary result of the judgment is that one party gains and the other loses a freehold estate, or where the title is so put in issue by the pleadings that the determination of the case necessarily requires a decision of such issue.” Prouty v. Moss, 188 Ill. 84.

“A proceeding by bill in chancery to transfer the legal title to real estate from one party to another, involves a freehold.” 57 Ill. App. 40. “ If both parties claim the fee, which one of them is right must be a question involving a freehold. * * * The power to investigate is (a) judicial (power) which must precede investigation. If it were held that a freehold was involved.only where both parties’ claims were well founded, and that the court had jurisdiction until it had ascertained that condition to exist, no case would ever be without the appellate jurisdiction of this (Appellate) Court because it involves a freehold, for no such case could ever arise.” Pratt v. Kending, 80 Ill. App. 281.

“ In a suit relating to the title to real estate, where a decree is entered setting aside certain deeds under which one of the parties claims title, the result of which is to place the title in the other, the litigation will involve a freehold.” Nichols v. Otto, 132 Ill. 91.

“ An appeal lies to the Supreme Court from a decree of a Circuit Court setting aside a conveyance of real estate on the ground of fraud, and ordering a reconveyance, as a .freehold is involved.” Hand v. Waddell, 167 Ill. 402.

To the same effect are Howe v. Warren, 154 Ill. 227; Banking Ass’n v. Com. Nat. Bank, 157 Ill. 576, and many other cases both in the Appellate and Supreme Courts of this State.

Tested by each and all of these authorities upon each and every point, the case before us involves a freehold.

It is true that in a proceeding by the ordinary creditor’s bill a freehold may not be and usually is not involved, but the bill in this case is not such a bill, nor are the issues raised here, such issues. Such creditor’s bill does not proceed upon the theory that title is in the complainant, nor call for transfer of title from a defendant to complainant, nor call for an investigation of the validity of any title; but only as to the consideration for and purpose of the conveyance, and decrees in such cases do not attempt to disturb the title. They only subject the lands in question, for certain equitable reasons, to the payment of certain specified judgments, and it is upon this ground alone that it has been held in certain cases that a creditor’s bill did not involve a freehold. So far as we are advised, in all the cases of that character that have been before our courts, and where it has been held that a freehold was not involved, the fact that at least the equitable title had at some time been in the judgment debtor was not disputed; and in none of these cases did the holder of the legal title claim by title wholly independent, both in law and equity, and from a wholly different source, than through the judgment debtor, so as to make it necessary for the court to pass upon the validity of any title to determine the issue raised by the pleadings; nor did the bill in any of these cases set up title in complainant, or the decree order a conveyance by the defendant to complainant or to any one, or in any manner attempt to determine the validity of any title, or to disturb or dispose of the title in any manner.

For want of jurisdiction in this case the appeal is dismissed, with leave given appellant to withdraw papers. Appeal dismissed.


author: Mr. Justice Worthington

text:
    William C. Holmes v. Thomas F. Holifield.
    1. Possession — Possession of Landis Possession of Crops Growing upon it. — A person in possession of land is, by virtue of such possession, so far as strangers are concerned, in possession of the crops growing upon it.
    2. Same — Carries with it the Right to Mortgage the Crops. —A tenant who is in the legal possession of land, has the right to mortgage the growing crops. As between him and his landlord, he majr agree before his crops are planted, to deliver his landlord’s share when they are harvested, but such an agreement is in the nature of a secret lien and will not prevail against a valid mortgage.
    Replevin. — Appeal from the Circuit Court of Pope County; the Hon. Joseph P. Robarts, Judge, presiding. Heard in this court at the August term, 1901.
    Reversed and remanded.
    Opinion filed October 21, 1901.
    Statement. — This is an appeal from a judgment of the Circuit Court in favor of appellee in an action of replevin for a lot of wheat, brought before a justice of the peace and appealed to the Circuit Court.
    J. H. Bailey rented from appellant in 1897, raising wheat, appellee furnishing seed, tools and team, and receiving as' rent one-half the wheat. In 1898 Bailey again rented and sowed wheat and rye, also planting some corn, appellee furnishing seed, binder and one team.
    There is some conflict in the testimony of Bailey and appellee as to how the division of the wheat was made for this year’s rent. Appellee testifies that the money received for it was divided. That he took from Bailey’s part what Bailey owed him on a store bill, and gave him the remainder. Bailey testifies that it was divided upon the grain receipts given for it when it was delivered. For the third year Bailey rented ninety-five acres and sowed it in wheat, he furnishing the teams, appellee furnishing seed and the binder. Bailey testifies that there was no change in the contract, which was verbal, except that he was to furnish the teams. Appellee testifies, in substance, that the wheat was to be in his possession until marketed, when he was to retain out of Bailey’s share what was owing him on a store bill, and was to give Bailey what was left. On May 28, 1900, Bailey mortgaged his half of the wheat to appellant, W. C. Holmes, to secure a note of $42, and a store bill of $75. When the wheat was threshed, Bailey turned over his half of the wheat to appellant, who hauled part of it away from where it was being threshed. While hauling the remainder he was stopped by appellee, who took the wheat from the wagons in which it was being hauled. Appellant brought replevin to recover it, and this is the action before us for review.
    Beams & Browning and James C. Courtney, attorneys for appellant.
    D. G. Thompson and William H. Moore, attorneys for appellee.
   Mr. Justice Worthington

delivered the opinion of the court.

The validity of the chattel mortgage to appellant is not seriously questioned. Bailey was the tenant of appellee and as such was in possession of the ninety-five acres upon which the wheat in controversy was grown. He sowed, cut, threshed and stacked the wheat and put it in sacks, dividing it as it came from the machine. Whether this Avas in accordance with his contract with his landlord is not material for the decision of this case. So far as the outside world was concerned he Avas in possession of the wheat as it grew, by virtue of being in possession of the land upon which it grew. Frink v. Pratt & Co., 130 Ill. 327; Watt v. Scofield, 76 Ill. 261.

Being in possession, he had the legal right to mortgage it to appellant and to deliver it to him upon his mortgage when it was threshed.

If appellee’s version of the contract of leasing is correct, it amounted only to Bailey’s agreeing to give him a lien upon property not then in existence, and which, so far as other creditors could know, when it came into existence, was free from liens and incumbrances. Such a promised lien could not prevail against a subsequent valid lien, held by one having no notice of the contract agreement. Gillings v. Nelson, 86 Ill. 591.

In this view of the case, the instructions given for appellee, to the effect that if they believed that appellee was in possession of the wheat, etc., were misleading. There was no evidence tending to shoAv that appellee was in possession as against one holding a valid lien.

As to his tenant, Bailey* he might have asserted his right of possession until his store bill was paid, if his version of the contract is correct, but not as to other creditors. In instructions of this character the law as to what constitutes possession should also have been stated. Possession involved a mixed question of law and fact which the jury could not correctly determine without knowing what the JaAV was.

For the reasons given the judgment is reversed and the case remanded.


author: Mr. Justice Bigelow

text:
    Consolidated Coal Co. of St. Louis v. Joshua S. Peers.
    1. Appellate Court Practice — Where No Gross-Errors Are Assigned. — Where an appellee assigns no cross-errors, he can not, in the Appellate Court, question the correctness of an adverse ruling of the trial court upon a rejoinder filed by him to a replication to his adversary's plea.
    2. Pleading — Inducement Defined. — In pleading, the term inducement is the statement which is introductory to the principal subject of the plea itself. Whether matter in a pleading is inducement or surplusage, must be determined by a sound construction of the whole pleading.
    3. Same — Surplusage Defined.- — Surplusage in pleading is defined to be matter wholly foreign and impertinent to the cause of action under consideration, not introductory or necessary to explain or elucidate it.
    4. Leases — Rights of the Lessee and Liabilities of Assignees. — An assignee of a lease is bound, by reason of the privity of estate, to a performance of all express covenants of the lease which run with the land leased.
    Suit for Royalties, under a mining lease. Appeal from the Circuit Court of Madison County; the Hon. William Hartzell, Judge, presiding. Heard in this court at the August term, 1900.
    Affirmed.
    Rehearing denied.
    Opinion modified and refiled September 4, 1901.
    Statement. — After the former judgment of the Circuit Court, and the judgment of this court affirming it, were both reversed by the Supreme Court' (see 166 Ill. 361), and after the cause ivas remanded to the Circuit Court, all of the original pleadings were abandoned and a new declaration was filed consisting of two counts, to which there was subsequently added another or third count. To the first count a plea was filed, raising an issue of fact, and this issue is apparently pending and undisposed of on the record.
    To the second count two pleas were filed, a replication was filed to the pleas, a rejoinder was filed to the replication and a demurrer was interposed to the rejoinder; the demurrer was overruled and appellee electing to stand by it, judgment was entered against him on the second count, for all costs accrued thereon.
    To the third count appellant interposed a general demurrer, which the court overruled, and judgment nil dicit was rendered in favor of appellee. A writ of inquiry was executed by the court without a jury, by consent of the parties, and appellee’s damages were assessed at §3,600, and judgment was rendered in his favor for that sum.
    The judgment rests entirely on the third count of the declaration, which is as follows:
    “That the plaintiff on the 17th day of December, 1870,-was the owner of the coal underlying the southwest quarter of the northwest quarter, and west half of the southwest quarter of section four (4) in township two (2) north, range eight (8) west, in St. Clair county, Illinois; and the Abbey Coal and Mining Company of that county was a. corporation existing and doing business under the laws of the State of Illinois, and was then and there engaged in the business of mining and operating coal. That the plaintiff, on the day and year aforesaid, together with Adeline C. Peers, his wife, who is since deceased, by their lease of that date, set over and assigned to the Abbey Coal and Mining Company for the term of twenty-five years, the sole and exclusive right of mining and operating in coal in the said tracts of land, in consideration whereof the lessee agreed to begin mining within twelve months from the date of the lease, and guarantee a yearly royalty of not less than twelve-hundred dollars per year after the expiration of twelve months from the date last aforesaid. That in and by the said lease it was further provided that if after the expiration of a year from the date thereof no coal should be mined from the said tract of land, the lessee should pay the monthly installments of one hundred dollars on its guarantee of twelve hundred dollars per year, and said payments should be considered as advanced royalty, and the lessee was to have the right to mine coal sufficient to make the amount of coal mined equal to the royalty paid, provided the royalty paid should not be less than one hundred dollars per month. That the lessee should carry on the work in a good workmanlike manner, and take as much coal from the land as the safety of the mine would admit, and pay the plaintiff a royalty of three-eighths of a cent per bushel of eighty-five pounds for all coal mined, except for the coal taken from the shaft, entries and courses, and coal used for the engines, which was to be free from rent. That the said royalty should be paid monthly on the 28th day of each month for all the coal mined during the preceding month.

      Plaintiff further avers that afterward, on the day and year aforesaid, the lessee entered upon the land and sunk a shaft and began mining the coal under the said lease, and so continued to do until the 11th day of August, 1886, when, by its deed of that date, the said Abbey Coal and Mining Company granted, bargained, sold, assigned, transferred and set over to the defendant the coal underlying the said tracts of land, with all the rights, privileges and appurtenances thereunto appertaining and belonging, as the same were - conveyed and assured by the said lease, and subject to the performance of the agreements therein mentioned to be performed by the lessee; and thereby covenanted and agreed to and with the defendant that' it was seized of a perfect title, and that the same was free from all other and prior incumbrances, except those specifically mentioned therein, and that it would warrant and defend the same to the defendant and its successors forever. That the defendant thereupon took possession of the property by the said deed conveyed to it, and from thence until the commencement of this suit has had the use, control and enjoyment thereof, and during that time, from the 20th day of September, 1891, until the 20th day of September, 1894, there accrued to the plaintiff, under the provisions of the said lease, for and on account of the royalty guaranteed as aforesaid, and which had not been paid or recovered, the sum of thirty-six hundred dollars, the same consisting of the monthly sums of one hundred dollars per month, which the lessee covenanted and agreed to pay according to the tenor and effect of the lease aforesaid, which said aggregate sum neither the said Abbey Coal and Mining Company nor the defendant company have ever paid to the plaintiff. And plaintiff avers that in and by the said deed of the said Abbey Coal and Mining Company, it granted, bargained, sold, assigned and set over to the defendant company, besides the leasehold interest and estate it had in and to the coal underlying the said tracts of land above described, all coal and coal rights, and all real estate owned by it at the time of the making of the said deed, and all tools, machinery, implements, live stock, personal property and fixtures theretofore owned and used by it in carrying on mining operations, and that it made the said deed with intent to retire from business, and after winding up its affairs by paying its liabilities then existing, incurred previous to that time for current and temporary purposes, and to the end that the defendant company should become its successor in said business, and have, hold, own, possess, enjoy and use all its property, real, personal and mixed, and theretofore held, owned, possessed, used or enjoyed by the said Abbey Coal and Mining Company in carrying on coal operations and mining coal from the tracts of land aforesaid; and that immediately after the execution of the said deed to the said Abbey Coal and Mining Company it ceased to carry on coal or mining operations and to do business of any kind, except to wind up its affairs as aforesaid, and was succeeded in business by the defendant company, which not only succeeded to the ownership of the property as aforesaid, real, personal and mixed, but also to all the rights and obligations of the said Abbey Coal and Mining Company under all contracts made by it, and then unexecuted in whole or in part, for the sale of coal and the products of its mines in the market in which the said last mentioned company had theretofore dealt.
    And plaintiff avers that prior to the said 11th day of August, 1886, the said Abbey Coal and Mining Company and the Ellsworth Coal Company, both corporations organized under the laws of the State of Illinois, and both engaged in mining coal, and leasing, buying, holding and working coal mines in the State of Illinois, and selling the products of their mines in the markets, and divers other companies, corporations and persons organized under the laws of Illinois, and doing business within the State, to wit, seventy corporations, companies and persons besides those above named, were merged into and consolidated into one company for the purpose and object of forming a general combination to do away as far as possible with competition in the markets between them theretofore existing, the result of which was that the defendant company wras organized to succeed the said Abbey Coal and Mining Company and the said Ellsworth Coal Company, and the other companies, corporations and persons aforesaid in the business of mining, marketing, selling, handling, dealing and operating in coal on all the lines of railroad in the State of Illinois terminating at or near or within the limits of the city of East St. Louis; that after the organization of said defendant company for the objects and purposes aforesaid, to the end that the defendant company should gain as far as possible the control of the markets, and exclusive control of all of the business previously carried on by the said Abbey Coal and Mining Company and the said Ellsworth Coal Company, and the other companies, corporations and persons aforesaid, the deed above mentioned from the Abbey Coal and Mining Company to the defendant company was executed, and it also obtained other deeds conveying all the coal, coal rights, coal lands, mining properties and holdings of the said companies, corporations and persons, and became their successor in the business of mining and operating in coal and selling coal in the markets in which said several corporations and companies had previously dealt, and from thence until the commencement of this suit"has continued to carry on the business of mining coal and selling, dealing in and handling coal in the markets aforesaid; whereby a consolidation of all the properties of the said corporations, companies and persons used for mining purposes was effected, and the defendant gained control of the same, and became the successor of the said corporations, companies and persons under contracts previously made by them for the sale of coal in the markets aforesaid, and to all rights and interests of said corporations, companies and persons in the coal mining business, so far as it was in their power to transfer and convey the same. And the plaintiff avers that after the formation of the defendant company, and the transfer to it of the properties of the corporations, companies and persons, the said last named corporations, companies and persons ceased to do business, and have not been engaged in business since then; and that Charles Bidgely, who was president of the said Ellsworth Coal Company, and one of the largest stockholders in it, George T. Cutts, who was secretary of the same company, and a stockholder in it, became president and secretary respectively of the defendant company at the organization thereof; that E. J. Crandall, who was president of the Abbey Coal and Mining Company, became the general manager of the defendant company at its organization, and was a large stockholder in both of said companies, and that one Thomas D. Price, who was the treasurer in said Abbey Coal and Mining Company, and its principal stockholder, became a large stockholder in, and the treasurer of the defendant company; and that all of the members of said constituent companies above named also became the controlling members of the defendant company at its organization, and continued to operate and manage it for along space of time thereafter, and the said Bidgely and Cutts from thence until the commencement of this suit, by reason whereof, and by force of the statute in such case made and provided, the plaintiff avers the defendant became and is liable to pay the plaintiff the sum of thirty-six hundred dollars above mentioned for and on account of the monthly royalties aforesaid; and being so liable the said defendant afterward, etc., undertook and promised to pay the plaintiff the said sum of money, but has not done so, to the plaintiff’s damage of four thousand dollars.”
    Charles W. Thomas, attorney for appellant.
    John G. Irwin and Wm. H. Krome, attorneys for appellee.
   Mr. Justice Bigelow

delivered the opinion of the court.

The errors assigned are, that the court erred in rendering judgment for the plaintiff on the third count, without disposing of the issue made on the first count of the declaration.

That the court erred in overruling appellant’s demurrer to the third count of plaintiff’s declaration.

And that the court erred in rendering judgment against the defendant for $3,600.

Appellee has assigned no cross-errors and therefore the declaration must be regarded in this court, as consisting of only the first and third counts.

Anything that we might say in regard to the second count or of the effect of the ruling of the court in connection with it, would be uncalled for, and mere obiter dicta, as the count and all that pertains to it, is to this court, as though it never had existed.

Counsel for appellant insists that the omission to dispose of the issue raised on the first count is such error as should reverse the judgment of the trial court. It was technical error not to dispose of the issue, but inasmuch as that issue had nothing to do with the third count, the pertinent allegations of which appellant admits by his demurrer, appellant was in nowise prejudiced by the omission, and it is not therefore such prejudicial error as calls for a reversal of the judgment. In this view counsel for appellant agrees, as near the- close of his printed argument he says :

“ The litigation has been a long one, and if appellee has any just ground on the merits of the case for a recovery there ought to be a recovery, and if he has no such ground the litigation ought to be terminated.”

We think that on the merits of the case appellee has just ground to recover, and agree with the counsel that the litigation ought to be terminated.

As to the error which brings in question the judgment of the court in overruling appellant’s demurrer to the third count of plaintiff’s declaration, it is insisted by counsel for appellant that much of the count is mere inducement, and that the essential ground of the action is the claimed consolidation of the Abbey Company with appellant and that if the pleading fails to show that there was such a consolidation, then the demurrer was wrongfully overruled. Whether matter alleged in a pleading is inducement or surplusage, must be determined by a sound construction of the entire pleading.

“ Inducement ” has-been defined as the statement of matter which is introductory to the principal subject of the declaration or plea, and which is necessary to explain or ■elucidate it. Such matter as is not introductory to, or necessary to elucidate the substance or gist of the declaration, plea, etc., or is collaterally applicable to it, is surplusage. Bouvier’s Law Dictionary (Bawle’s Ed.). And the same authority defines “surplusage” to be matter wholly foreign and impertinent to the cause. Had the pleader intended to have only stated the statutory liability of appellant to pay the rent reserved in the lease, all that would have been needful was to allege the consolidation of the Abbey Company with appellant, or facts constituting a consolidation; that the Abbey Company was owing the debt sued for, and that while so indebted it merged its corporate life with appellant.

The allegations that the Abbey Company made a deed to appellant, containing certain agreements, which deed was accepted by appellant, and that appellant went into possession of the leasehold estate, were all immaterial matters, if appellee was grounding his action on the claimed consolidation only. In no sense can they be taken to be in necessary explanation of the main groundwork of the count, if construed as a count for consolidation only. Ought these allegations to be considered as mere surplusage % The allegation that the deed contained an agreement “ subject to the performance of the agreements therein mentioned to be performed by the lessee,” shows that the pleader relied ' upon the privity of contract that the law, in a proper case, may say exists; and the fact that the pleader says “ that the defendant thereupon took possession of the property by said deed conveyed to it, and from thence until the commencement of this suit has had the use, control and enjoyment thereof,” etc., shows that the pleader was relying for a recovery on the grounds of privity of estate existing between appellee and appellant as the assignee of the lessee, the Abbey Mining Company. To denominate that kind of pertinent allegations as surplusage, when they are attacked in no way except by a general demurrer, merely because there is ip, the same count an attempt to hold appellant liable on the theory of a consolidation, would be to construe away essential allegations without authority of law. We are of the opinion that the count should be regarded as presenting a double, or possibly a treble ground of liability for a single demand. In other words, the count must be regarded as containing .the fault known in pleading as duplicity, and such a fault can be reached only by special demurrer.

The only question left is whether the count states some cause of action; for if it does, the court did not err in overruling the demurrer and in assessing the damages.

In passing on the present record, the decision in the 166th Ill. can not be controlling, because appellant’s pleas in the record as it then stood showed an assignment of the leasehold estate, by appellant to one Lasurs, on the 28th day of November, 1887, and that he took possession of the leased premises, thereby terminating the privity of estate theretofore existing between appellee and appellant; nor is there in the present record any question of res adjudicata. By the allegations already quoted appellant is admitted to have received an assignment of the leasehold estate from the Abbey Company, and the demurrer admits that appellant was in possession of the estate from September 20, 1891, to September 20, 1894. An assignee of a lessee is bound, by reason of the privity of estate, to a performance of all express covenants which run with the land. Consolidated Coal Company v. Peers, 166 Ill. 361; Sexton v. Chicago Storage Co., 129 Ill. 318; Webster v. Nichols, 104 Ill. 160.

This view of the case makes it unnecessary to determine whether there was a consolidation of the Abbey Company with appellant or not; and it likewise makes it unnecessary to determine whether the expression performance of the agreements therein mentioned to be performed by the lessee,” became a binding express covenant on appellant, when it accepted the deed from the Abbey Company. There was no error in assessing plaintiff’s damages and rendering judgment therefor, as was done, since the demurrer admitted the royalty alleged in the count to be due and unpaid.

Finding .no error in the record requiring a reversal of the judgment it is affirmed.


text:
    Village of Altamont v. M. S. Carter.
    1. Sidewalks — Knowledge of Defects Does Not Establish Negligence per se. — Knowledge of defects in a sidewalk by a person before he goes upon it and is injured, does not, of itself, establish negligence on the part of the person injured.
    2. Same — Knowledge of Defects a Part of the Things to be Considered. — The knowledge of a person injured, by defects in a sidewalk, of its condition when he attempts to go upon it, is one of the circumstances to be considered by the jury in determining whether such person was, at the time of his injury, in the exercise of ordinary care for his own safety.
    3. Same — Right to Pass Over Defective Walks. — While a person, as an unqualified legal proposition, has neither the absolute right to pass over a sidewalk which he knows to be defective, nor is he bound to take another route to his home, and for the court to hold such person guilty of such negligence in taking a route home over a sidewalk which he knows to be defective, or in looking up at the windows of adjacent buildings as he passes along over such walk, as would deprive him of a right to recover for an injury received, would be to exercise a power .belonging to the jury which tried the case.

      4. Instructions — Unnecessary to Repeat in Each Instruction the Words, “if the Jury Believe from the Evidence.” — When the trial court, in an instruction, tells the jury “ if they believe from the evidence,” etc., it is unnecessary to repeat the words in the same instructions, for it is an ancient and wise saying that “ Many words darken speech.”
    Replevin. — Appeal from the Circuit Court of Effingham County; the Hon. William M. Farmer, Judge, presiding. Heard in this court at the August term, 1901.
    Affirmed.
    Opinion filed October 21, 1901.
    Jacob Zimmerman, attorney for appellant; Wood Bros., of counsel.
    Wright Bros, and E. ET. Rinehart, attorneys for appellee.
   Mr. Justice Bigelow

delivered the opinion of the court.

Appellee brought an action of trespass on the case, against appellant, to recover damages for injuries received by him, from falling into an opening that had been left uncovered and unguarded, in a sidewalk along a public street, in the village of Altamont, while in the exercise of due care for his own safety'.

A trial by jury resulted in a verdict in favor of appellee for $1,000 damages, on which judgment was rendered by the court, after denying a new trial, and the village brings the record here on appeal.

Appellant’s statement of the case, is, so far as it goes, substantially correct, and is as follows :

“ A brick walk, five feet wide, running north and south on Second street, past the west side of Klitzing & Munzell’s store building. On the west side of the walk and close to its edge was a hitch-rack, where many teams stood, and horses’ heads and wagon tongues extending over the railing, made the walk narrow. On east side of walk, close to building, four ventilating holes had been left. They led into the basement for ventilation, or to put in coal, or potatoes, or to admit light. The most northerly hole was for coal, the next one south for potatoes, and the next for light. The coal hole was covered with plank; the others with a lid made of slats, one inch thick and three inches wide; village authorities were ignorant that holes were open. One was open a year prior to accident. Each hole had a head or covering, but during winter of 1900, the one next the most southerly got broken, when it was covered with a board. The covers had hinges. The holes were twenty inches in width and seventeen inches deep, but the second from the south, in which appellee claims to have fallen, was half filled with rubbish. When coal or potatoes were being put into basement, the two northerly holes were open, and closed at other times. Appellee knew condition of walk and the holes for more than a year.

The evening of the accident appellee was at paper store, sixty feet south, and on same side of street. Two persons started home with him, going north and passing over the sidewalk where these holes were. The nearest way was to go west across the street. This was the usual way and one of the party proposed it, but appellee insisted on going north. This brought them alongside the Klitzing & Munzell building to Sailroad street, then across Second, and then south on west sidewalk past Mrs. Tapson’s, which was further south than the paper store.

Appellee and his two companions walked nearly abreast, he taking the inside, which brought him next to the Klitzing & Munzell building. He stepped into the second hole from the south, and fell forward, or in front. He was assisted home, and a physician called in at once, whom he would not permit to make examination, and whom he discharged by employing another physician.

At some period afterward, physicians judged that appellee’s tail bone was fractured from a fall, and striking there, or concussion of spinal cord. The appellee had stated that he fell and hurt his back, also that in falling he had struck his abdomen and in jured his bladder.

Prior to this accident appellee was affected with tuberculosis to an extent that required amputation of arm, there being suppuration of the elbow joint and destruction of bones of arm above and below.”

To the foregoing should be added that appellee is a painter and decorator by trade, and had been requested to frost the windows of a hall on the opposite side of the street on which he was traveling, and at the time he fell into the open hole, he was not thinking about the hole, but there was a light in the hall, and he was looking at the hall windows to see how badly they needed frosting.

It is contended by counsel for appellant that inasmuch as appellee knew of the existence of the open hole in the sidewalk, his injury was occasioned by his own negligence, or want of due care and caution, and therefore he ought not to recover.

In support of this contention, counsel cite City of Aurora v. Pulfer, 56 Ill. 270; City of Centralia v. Krouse, 61 Ill. 19; Village of Kewanee v. Depew, 80 Ill. 119; Village of Clayton v. Brooks, 150 Ill. 97.

In City of Aurora v. Pulfer, Pulfer was injured in climbing over a fence in the night time. The fence was placed where it was by the owner of the land. It was claimed by Pulfer that the fence obstructed a street or thoroughfare of the city, but the evidence in the case failed to show the existence of any street or thoroughfare where the fence was erected, and after commenting on the facts as to the existence of a street, the court said, “if the right of the city was clear and unequivocal it would be the plain duty of the city to keep it open and free from obstruction for the use of the public, or answer in damages for the consequences.” The city was held not liable.

In City of Centralia v. Krouse, a disastrous fire in the city, about the middle of December, 1870, destroyed eleven buildings, one of which belonged to Krouse. The sidewalk in front of the buildings was made of plank, and was so damaged by fire as to render it almost impassable. Within two or three days after the fire, there was a fall of snow and sleet, and the weather became so very cold that it was difficult to procure men to repair the sidewalk. The city had erected temporary guards along the walk to prevent accidents. A very few days after the fire, Krouse, in passing over the sidewalk to get to his own building, in the daytime, and with full knowledge of the dangerous condition of the walk, fell and was injured, and in consequence of the injury sought to recover damages from the city. The court held that under the conditions that existed, the city should not be held liable for not repairing the walk before the accident occurred, and that the injury was the result of the negligence of Krouse.

In Village of Kewanee v. Depew, Depew, while passing over, a board sidewalk in Kewanee, about 9 o’clock in the morning, because of a defect in the walk, which he already knew of, fell and was injured. He sued the village for neglecting to repair the sidewalk. The court held that the village wras negligent in not repairing the walk, but that Depew could not recover damages for his injuries, because of his “ heedlessness ” in not using his eyes to guide his steps in passing over the hole in the walk, but instead was “ engaged in observing a passing buggy, to satisfy his curiosity in regard to the style of harness used upon the team.”

Heither of the above cases is sufficiently analogous in its facts, to the facts in this case, to warrant the contention that the holding in either case, should govern this case.

The remaining case cited is Village of Clayton v. Brooks. In that case the appellee, Louisa M. Brooks, between the hours of 9 and 10 o’clock of a dark night in July, while returning home from a lodge building where she had been for the evening, fell into a hole in the sidewalk and was injured. She had known for weeks before of the condition of the sidewalk. She could have gone by another route in safety, by traveling about two blocks further. She sued the village and recovered a judgment for $2,500, and the village appealed to the Appellate Court which affirmed the judgment, when it appealed to the Supreme Court with like' effect. The Supreme Court said: “The law is, we think well settled, that knowledge of the defect in the sidewalk, by the person injured, before he goes upon the same or before the injury, does not per se, establish negligence upon his part,” citing many cases. The whole case is so nearly like the one at bar, that it is scarcely possible to distinguish any substantial difference between them; and we are of the opinion that the law as laid down in that case should govern in this case. The hole into which appellee fell was a large one, and dangerous to pedestrians traveling on the sidewalk, even in the daytime; and the fact that for the moment appellee did not think of the existence of the hole, for which he gives a reason, is not sufficient to charge him with such negligence as an ordinary, careful, prudent man would not have been guilty of.

It is by no means certain that if appellee had been looking straight ahead, and had in mind the existence of the hole, that he would not have fallen into it. But it is urged that he might have taken another route to his home, and so have arrived there in safety, and probably that is true; but the ordinary man is not endowed with omniscience, and the law ought not to be applied to him as if he were so endowed.

Appellee’s knowledge of the condition of the sidewalk that he attempted to pass over, was one of the circumstances to be considered by the jury, in determining whether he Avas in the exercise of ordinary care for his own safety; City of Bloomington v. Chamberlain, 104 Ill. 268; City of Sandwich v. Dolan, 133 Ill. 177; City of Flora v. Naney, 136 Ill. 45; City of Joliet v. Conway, 17 Brad. 577.

As an unqualified legal proposition, appellee had neither the absolute right to pass over the defective sidewalk, which he knew to be defective, nor was he bound to take another route to his home, the sidewalk along which was not defective. To hold that appellee was guilty of such gross negligence in taking the route to his home that he did, or in looking at the windows of the building as he did, or in both, as should deprive him of any right to recover for the injury received, Avould be to exercise a power that belonged to the jury which tried the case, and which neither the trial court nor the Appellate Court rightfully possesses.

It is suggested by counsel for appellant that the court erred in giving some of plaintiff’s instructions, and particularly the first instruction, because it did not tell the jury that they should find their verdict from the evidence. The instructions are not given in full in the abstract, as they should have been, but an attempt was made to abbreviate them (a practice we can not encourage); but Ave have looked into the record and find that the ground of the objection does not exist in fact.

When the court, in an instruction, tells the jury “if they believe from the evidence,” etc., it is unnecessary to repeat the Avords again in the same instruction, for it is an ancient and wise saying tha t “ many words darken speech.”

There is no ground for objection to any of plaintiff’s instructions.

As to appellant’s refused instructions, there was no error in refusing them, as the substance of them was fully contained in other instructions given.

We do not Understand appellant’s counsel as urging there was any error, either in admitting or excluding evidence, and we find none.

The judgment is affirmed.


text:
    Illinois Central Railroad Co. v. Robert Bundy.
    1. Railroads — As Common Carriers — Duty to Furnish Cars.— When, a shipper requires a car at a railroad station for his exclusive use he must give notice to the railroad company, after which it will have a reasonable time in which to furnish the car.
    2. Instructions — To be Based upon the Evidence. — Instructions in a case submitted to a jury for its determination must be based upon the evidence in the case.
    Assumpsit, to recover damages for delay in furnishing a car for the shipment of stock. Appeal from the Circuit Court of Saline County; the Hon. Alonzo it. Vickers, Judge, presiding. Heard in this court at the February term, 1901.
    Reversed and remanded.
    Opinion filed September 4, 1901.
    William H. Green, attorney for appellant; J. M. Dickinson, of counsel.
    Choisser, Whitley & Choisser, attorneys for appellee.
   Mr. Justice Worthington

delivered the opinion of the court.

By the amended declaration, this action was to recover damages for. delay in furnishing a ear for the shipment of stock from West End, a small station without a telegraph on appellant’s road, to Indianapolis. Plea of the general issue, verdict and judgment for appellee for $91.33.

Appellee was a stock dealer who had frequently shipped stock by appellant’s road. He had been told by the station agent to give notice a day before he wanted a car. On Thursday, the 2oth of January, he applied to the agent for a car to be furnished on Saturday, January 27th, in which to ship hogs to Indianapolis, and was told by the agent that a car would be provided. Appellee had ninety-eight hogs in the stock pen on Saturday ready to be shipped. They were weighed, a way-bill made out by the agent, except as to the number of the car, but no car was furnished. Appellee testifies that when the freight train stopped on that day, a stock car was set out on the switch, but was at once reattached to the train and taken away. The agent at West End on Thursday notified Z. A. Dodd, appellant’s agent at Thompsonville, that being the nearest telegraph station, that a car was requested at West End on Saturday. Dodd testifies that he received the order from the agent at West End and says:

“ I ordered the car without delay through the train dispatcher at Car bond ale. * * * I think it was Monday evening it was sent out there. I think it was Saturday I ordered that car.”

If this testimony is correct, the car delivered on Mondajr was sent on the order made by Dodd of Saturday, and not on the order of Thursday.

Allen, the train dispatcher, testifies that as far as he can recollect, he made the request upon the Big Four Railroad Company for the car the same day he received notice. He also testifies that “ this was the usual way to procure a car for a shipper at West End.” The order was made upon the joint agent of the Big Four and of appellant at El Dorado, a station sixteen miles from West End. Stock cars billed to Indianapolis from West End were hauled on appellant’s road to El Dorado, and then transferred to the Big Four. One freight train daily, about 2 p. m., passed east from West End to El Dorado. No car having been provided until Monday evening, appellee sold his hogs to a local dealer at West End.

Damages are claimed for shrinkage in weight, cost of feeding, and difference in the market price at West End compared with Indianapolis. Counsel for appellant insist that appellant’s liability, under the declaration as amended, is a common law liability only, and that the court therefore erred in giving appellee’s first instruction.

Their contention is, that when a shipper requires a car at a station for his exclusive use, he must, at common law, give notice to the railroad company, after which notice the company has a reasonable time in which to furnish the car. This is the rule at common law. Elliott on Railroads, Vol. 4, p. 2293.

This rule is not different under the statute. Chap. 114, Sec. 84.

The first instruction given for appellee quotes a part of this section. It declares it to be the duty of every railroad corporation * * * to furnish * * * oars for the transportation of such * * * property as shall, within a reasonable time previous thereto, be ready or be offered, for transportation,” etc.

This clearly implies that there is no duty resting upon a railroad company to furnish a car for the exclusivé use of a shipper unless it has had notice that the shipper wants the car. Reasonable notice to furnish a car, and reasonable time to furnish it after notice, are different ways of saying the same thing.

The time between giving the notice and providing the car, is the interval to be considered in deciding whether or not it is reasonable time. Appellant’s given instructions clearly and forcibly state this rule of reasonable time, and we find no contradictory statement in any instruction for appellee.

It is urged that Sec. 84 is a penal statute and is to be strictly construed. That is only so when the penalties provided for its violation are sought to be enforced. Ill. & St. L. Coal Co. v. People, 19 Ill. App. 141.

The third instruction is not open to the criticism that it “ presumes that material and disputed facts have been proven.” The qualifying words in the first sentence of the instruction, “ if you believe from a preponderance of the evidence in this case,” clearly and grammatically apply to all the propositions upon which the instruction is based. Toledo W. & W. Ry. Co. v. Lockhart, 71 Ill. 629.

If the railroad company negligently failed to furnish a car,” its negligence must have been in failing to furnish it within a reasonable time after it was ordered. That its duty consisted in furnishing it within such reasonable time, is the gist of all instructions given, bearing upon this duty.

The fourth instruction given for appellee is as follows:

You are instructed that when a railroad company negligently fails and refuses to furnish trasportation for live stock which has been prepared and offered for shipment to market, and the person so offering said stock is thus deprived of shipping the said stock to the market intended, but sells said stock in consequence thereof in a different market and at a lower price, and is compelled to feed and care for said stock until their sale in such market, and the said live stock in number of pounds when such stock is valued by the pound, that such railroad company would, in such case, be liable to the shipper for the actual damage sustained.”

This instruction should not have been given.

The sentence and the said live stock in number of pounds when such stock is valued by the pound,” as used in the instruction is not pertinent and has no application. Neither is there evidence to support the proposition that appellant failed and refused to furnish transportation. The evidence shows that a car was furnished Monday. If appellee is entitled to recover it is for delay in furnishing transportation, and not for an entire failure to furnish it. Nor is there evidence that appellee was compelled to sell his hogs at West End* by reason of a failure to furnish transportation. He chose to sell them rather than wrait for a car. If he had kept them and shipped them on Monday, when a car was furnished, but had suffered loss through neglect of appellant in furnishing a car, his grounds of recovery, if any, would have been the same as they are now.

For the error in the instruction, the judgment of the Circuit Court is reversed and the case remanded.


author: Mr. Presiding Justice Creighton

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    Thomas Rankin et al. v. Commissioners of Road District No. 15.
    1. Injunctions — To Bestrain the Commissioners of Highways from Vacating a Highway. — An injunction will not lie to restrain the commissioners of highways from vacating a road when they are proceeding regularly under the statute authorizing them to do so.
    Bill for an Injunction. — Error to the Circuit Court of Randolph County; the Hon. William Hartzell, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    Gordon & Irose, attorneys for appellants.
    Hamill & Borders, attorneys for appellees.
   Mr. Presiding Justice Creighton

delivered the opinion of the court.

This was a bill in chancery, in the Circuit Court of Randolph County, to enjoin defendants in error as commissioners of highways from vacating a certain part of a public road. On the 13th day of August, 1900, the bill was pre-' sen ted to one of the judges, in chambers, and a temporary injunction ordered. At the following September term of the court defendants in error demurred to the bill, the court sustained the demurrer, plaintiffs in error elected to stand by their bill, the court ordered the injunction dissolved and the bill dismissed.

The statute provides as follows (Chapter 121, Starr & Curtis):

§ 230. “ The commissioners may * * * vacate any road within * * * their respective districts, when petitioned by any number of land owners, not less than twelve, residing in such districts, and within three miles of the road to be so * * * vacated.”

§ 232. “ When the commissioner shall receive such petition they shall fix a time when, and a place where, they will meet to examine the route of such road, and to hear reasons for or against the * * * vacating of the same * * * , and they shall give at least ten days’ notice of the time and place of such meeting.” * * *

§ 238. “ In all cases where a petition is presented to the hoard of highway commissioners, praying for * * * a vacation of any road, * * * if there shall be remonstrances presented against granting the same, it shall be the duty of said board to give due consideration, both to the petition and remonstrances, and grant or refuse the prayer of such petitioners, as in their discretion shall be just and proper.”

§ 259. Any person or persons interested in the decision of the commissioners in determining to or refusing to * * * vacate any road * * * may appeal from, such decision to the County or Circuit Court.”

From what complainants’ bill states it appears or must be inferred that the road in question is a public road, within the district over which the defendant commissioners had jurisdiction; that a proper petition praying for a vacation of the road had been properly presented; that the commissioners had properly fixed the time and place "when and where they would meet to make the examination required by the statute and to hear reasons for and. against the vacating of the road, and had given due notice thereof. At this point further proceeding on the part of the commissioners was stayed by the temporary injunction.

It is not charged, nor attempted to be charged in complainants’ bill, that the commissioners had in any respect proceeded irregularly or to any extent gone beyond their duty as plainly laid down in the statute, nor is there any charge of an intention on their part to proceed irregularly or to go beyond the duty imposed by law. The bill presents no ground warranting a court of equity in interfering with the course of procedure provided by statute in such cases.

We find no error in this record. The decree of the Circuit Court of Eandolph County is affirmed.


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    Abner R. McKinney v. John Armstrong and Henry O. Tonsor.
    1. Statute of Frauds — When a Promise is Within the Statute' — In order that a promise can be held to be within the statute of frauds, it is essential that there be a binding and subsisting obligation or liability to the promisee to which the promise in question is collateral. It must be something beneficial to the one party or disadvantageous to the other, or to persons whom the parties represent.
    2. Consideration — What is Sufficient as. — The act of one stockholder in furnishing money from his private funds to another stockholder of a mining company for the immediate relief of such company and to kerp it “ a going concern ” is a sufficient consideration to support a promise to repay the same.
    8. Verdicts — Form Held Sufficient. —A verdict in the following form, viz.: “ We, the jury, find the issues for the plaintiffs and assess their damages at three hundred and seventy-five dollars, and interest thereon at five per cent per annum from the date at which the money is shown by the evidence to have been borrowed, making four hundred and twenty-one dollars and twenty-five cents,” is sufficient for the entry of a, judgment for the sum of four hundred and twenty-one dollars and twenty-five cents.
    4. Same — Power of Courts to Have Verdicts Put in Form. — A trial court of record has ample power to have its verdicts amended and put in proper form so as to speak the intent of the jury.
    Assumpsit, for money paid, etc. Appeal from the Circuit Court of Madison County; the Hon. William Hartzbll, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    Henry S. Baker, attorney for appellant.
    Dunnegan & Leverett, attorneys for appellees.
   Mr. Justice Bigelow

delivered the opinion of the court.

The several parties to this suit reside at Alton, in this State, and with one L. T. Castle and one H. T. McKinney, comprise the entire stockholders of the Alton Mining and Milling Company, a corporation organized under the laws of the Territory of New Mexico, for the purpose of mining gold.

The principal office of the company was at Albuquerque, in the Territory.

In June, 1898, appellee Armstrong was president of the company, and L. T. Castle was its general manager; the latter, with H. T. McKinney, was in charge of the mine, and the corporation became indebted to its workmen about $1,000, and had not the ready means to pay its liabilities. Thereupon appellee Armstrong advanced of his own money $300, for that purpose, and appellees together borrowed of one McGinnis $750, giving their note therefor, due one year after date, with seven per cent interest, and this money was also used in canceling the indebtedness of the mining company. When the note fell due it was, at the solicitation of appellant and appellees, renewed for another year by McGinnis at six per cent interest, and at the end of that year the note was paid off by appellees.

The contention of appellees is, that at the time the $750 was borrowed of McGinnis, appellant promised appellees that he would pay them one-half of the sum so borrowed, with the interest accrued thereon, and accordingly, after appellees paid their note, they sued appellant in an action of assumpsit on the common counts and filed a copy of their account sued on, charging appellant with $350, borrowed and expended by plaintiffs for defendant; and with a like sum'borrowed and advanced to the defendant by the plaintiffs on June 15, 1898, at defendant’s request.

A. trial by jury resulted in a verdict for appellees for the full amount of their claim, on which, after denying appéllant’s motion for a new trial, the court rendered judgment and the case comes here on the appeal of defendant below.

The principal grounds on which appellant relies for a reversal of the judgment are tersely stated by his counsel as follows:

“ The defendant claims that the suit is in effect a litigation to recover upon the note introduced in évidence and seeks to hold the defendant responsible for the debt of another,and that as the promise is not in writing as required by the statute of frauds, plaintiffs can not recover.

,In addition thereto, the defendant denies that any such promise was ever made, and that there was no consideration for any such promise, even should the testimony of the two witnesses be held to outweigh the evidence of the defendant alone. The defendant also contends that the verdict of the jury is improper and indefinite, and that the court erred in entering a-judgment upon such verdict.”

The contention “ that the suit is in effect a litigation to recover upon the note introduced in evidence,” is an erroneous view to be taken of the matter. There is no count in the declaration declaring on the note executed by appellees to McGinnis. It is true the note was introduced in evidence, not for the purpose of recovering upon it, but for the purpose of sustaining in part, at least, appellees’ contention that they had borrowed of McGinnis $750 to be used in paying the liabilities of the mining - and milling company, and had subsequently paid the note with the interest accrued upon it, which was apart of their contract with appellant, that he should repay appellees one-half of the money borrowed, with interest.

When the note was executed, the money borrowed on it was used in paying the debts of the mining company, and when it was paid, the indebtedness, which the note was but the evidence of, was completely wiped out.

How appellees, by- suing appellant, were seeking “to hold the defendant responsible for the debt of another,” as stated by counsel, is not easily understood, and counsel have not undertaken to remove the cloud that prevents us from seeing that section 1 of the statute of frauds and perjuries has any application to a case of the character of this. That section reads as follows :

“ That no action shall be brought * * * whereby to charge the defendant upon any special promise to answer for the debt," default or miscarriage of another person * * * unless the promise or agreement upon which such action shall be brought, or.some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.”

Counsel for appellant, in his brief, quotes from the opinion in Eddy v. Robarts, 17 Ill. 505, and concedes that:

“ In considering whether the promise is within the statute the main question is whether it is original and independent or collateral to and dependent upon the debt or liability of another.”

If the promise was, in fact, made by appellant as contended by appellees, to what debt or liability ” was it collateral to? The promise was not made to. McG-innis to pay appellees’ debt to him, and it was not made to the creditors of the mining company, as seems to be assumed by appellant, if we understand him.

In the case of Resseter v. Waterman, 151 Ill. 169, the court said:

“ In order that the promise can be held to be within the statute, it is essential that there be a binding and subsisting obligation or liability to the promisee to which the promise is collateral; in other words, that the party for whom the promise has been made must be liable to the party to whom it is made.”

Tested by this rule it is apparent that the promise, if any was made, was made by appellant to appellees, and was therefore an original promise, and hence was not within the statute requiring it to be in writing.

But it is' insisted by appellant that even if the promise was original, it was without consideration and therefore without binding force. The rule of the common law, that there must be a consideration to uphold a contract, is not disputed by any one; but what may be regarded as a good consideration to sustain a promise, sometimes becomes a controverted question of law. As each case must stand on its individual facts, always varying, perhaps no better general statement of what will support a promise can be more readily found than that contained in Sec. 61 of Bishop on Contracts (enlarged edition), viz.:

“ It must be something beneficial to the one party, or disadvantageous to the other, or to persons whom the parties represent.

The fact seems to be uncontradicted, that appellant and appellees, with L. T. Castle and H. T. McKinney, were the owners of the entire capital stock of the Alton Mining and Milling Company, but in exactly what proportions does not appear, though a fair inference to be drawn from the evidence is, that the immediate parties to this suit were the principal stockholders and .persons interested in the mine, and in the credit of the company. Certainly appellant was a heavy stockholder and was interested in preserving the company in a going condition, and this, it appears, could not be done unless money was immediately raised to pay the indebtedness of the company to its miners.

That by the raising of the money which, with the $300 of appellee Armstrong’s private fund, was used to relieve the immediate necessities of the mining company, and keep it a going concern, appellant received a benefit that he would not have otherwise received, seems too clear to require further elucidation.

But should it be conceded that no benefit inured to appellant in consequence of the transaction in borrowing the money from McGinnis, yet if the money was borrowed by appellees, relying on the promise or guaranty of appellant to pay appellees one-half of the sum borrowed, with interest, there is no room for doubting that the transaction was disadvantageous to appellees, and this of itself was a sufficient consideration to support the promise of appellant, if one was made.

It is urged by appellant that no promise was made by him to .pay to appellee one-half of the money borrowed of McGinnis with interest, for which this suit was brought. The testimony in regard to the matter was confined entirely to the parties to the case.

Appellees each testified unequivocally to the making of the promise, while appellant’s testimony was halting, uncertain, and to the effect that he did not remember making such a promise.

There were other facts and circumstances testified to by appellant as well as by appellees, which tended to substantiate the testimony of appellees in regard to the promise, ■ and as the question whether the promise was in fact made, was for the jury to determine, their verdict should not be disturbed.

The only remaining contention of appellant is, “ that the verdict of the jury is improper and indefinite, and that the court erred in entering a judgment upon such verdict.”

The verdict, as shown by the judgment entered upon it, is as follows:

“ We, the jury, find the issues for the plaintiffs and assess their damages at three hundred and seventy-five dollars and interest thereon at five per cent per annum from the date at which the money is shown by the evidence to have been borrowed, making four hundred and twenty-one dollars and seventy-five cents.”

We are unable to find anything improper or indefinite in the verdict. Counsel for appellant, however, says in his argument, that the verdict, when returned by the jury, did not contain the last eleven words as they now appear in it, and that he made an oral motion to quash the verdict but no record was made of the motion or the ruling on it.

We can not take notice of or consider any matter not contained in the record. It may be the court amended the verdict by adding the eleven words, but if it did so, the presumption, in the absence of anything to the contrary, is that the amendment was made in the presence of the jury, and that they assented to the verdict as amended. And besides, the note to McGinnis is a part of the record, and we are not prepared to hold that, under section 56 of the practice act (See Hurd’s R. S. 1899, page 1212), the court could not look to the note in directing the clerk to put the verdict in form, to make it speak the clear intent of the jury, and this is all that was done, as claimed by appellant’s counsel.

The jury, under the section of the practice act above referred to, might have returned an oral verdict, when the court, or the clerk under the direction of the court, would necessarily have been required to reduce it to writing.

As to the power of the courts to have verdicts amended and put in form, so as to speak the intent of the jury, see Chittenden v. Evans, 48 Ill. 52; Clapp v. Martin, 33 Ill. App. 438, and cases there cited.

We find no error in the record and the judgment is affirmed.


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    The People, ex rel., etc., v. William E. Finley, et al., Commissioners of Highways.
    1. Records — Proceedings of Townships Not to be Proven by Parol.— In a proceeding for a mandamus to compel the commissioners of high-, ways of a township in counties under township organization to proceed to lay out a new road, it is error to permit the commissioners to show by parol that the labor system had been adopted by their township and that they had in fact levied all the taxes they were authorized by law to levy.
    2. Townships — Are Corporations. — All townships in counties under township organization are corporations and their official acts are required to be recorded by the clerk.
    3. Commissioners oe Highways — Are Quasi Corporations. — The commissioners of highways are quasi corporations and their official acts are required to be recorded and are provable by record evidence only.
    4. Same — Power to Levy Taxes for the Payment of Damages for the Laying Out'of Roads. — Under either the cash or the labor system the commissioners of highways of townships in counties under township organization have ample power to levy taxes for the payment of damages occasioned by the laying out of new roads, as under either system the tax sought to be levied is payable in money only.
    5. Mandamus — Not To Be Issued Unless it Can be Made Effectual.— When the time for opening a new road has expired by limitation of the statute. (R. S., Ch. 121, Seo. 30,) a writ of mandamus will not be issued to compel the commissioners to open it.
    Mandamus, to compel the commissioners of highways to open a new road. Appeal from the Circuit Court of Lawrence County; the Hon. Prince A. Pearce, Judge, presiding. Heard in this court at the February term, 1901,
    Reversed and remanded.
    Opinion filed September 4, 1901.
    Gee & Barnes, for appellant.
    W. F. Foster and Charles H. Martin, attorneys for appellees.
   Mr. Justice Bigelow

delivered the opinion of the court.

The relator, George L. Ryan, presented a petition to the Circuit Court of Lawrence County, for a writ of mandamus against the commissioners of highways of the town of Bridgeport, in that county. Appellees filed an answer to the petition, a hearing was had on evidence introduced, and the court refused to award the writ.

On the 15th of December, 1898, a petition, signed by the requisite number of landowners, was presented to appellees, for the laying out of a road; the commissioners gave the notice required by law, and met on the day fixed for the purpose of hearing reasons for and against laying out and establishing the road. The prayer of the petition was denied, and an appeal was taken by the parties in interest to three supervisors of the county, who heard the appeal and granted the prayer of the petition. A survey was had, and the damages ascertained partly by agreement, and partly by a jury called for that purpose. The final order was made and filed in the office of the town clerk, declaring the road to be laid out as therein provided.

It is admitted that all of the proceedings which resulted in laying out the road were regular, except appellees’ claim that the road laid out by the supervisors was a quarter of a mile longer than the proposed road described in the petition. A careful examination of the petition and final order fails to disclose any foundation for the claim, as, though the two instruments are differently worded, they seem to refer to the same road. The petition for a mandamus alleges that the commissioners of highways have refused to take any steps for the opening of the road, and that they have, in particular, neglected and refused to make a tax levy, for the damages which were ascertained — the damages and costs amounting to the sum of $898.55.

The answer of. the highway commissioners alleges, among other matters, that the town of Bridgeport is operating under the road labor system according to the statute in such cases made and provided; that the taxable property of the town amounts to $93,391, and that a tax of only $290.68, can be realized from a forty cent levy on each $100 of the assessed value of the property; that the commissioners, at the annual town meeting in 1899, submitted to the voters of the town a proposition authorizing an additional levy of forty cents on each $100 of property, and the proposition was unanimously voted down; that the commissioners are levying the full amount of forty cents tax oh each $100 of property in the town as authorized by law. Issues were framed on this answer. Appellees were permitted to show by parol testimony that the labor system had been adopted by the town, and that the commissioners had in fact levied all the taxes they were authorized by the law to levy, to wit, forty cents oh each $100 of property in the town. Objections were made to this evidence and exceptions were taken to the court’s ruling in admitting it.

All townships in counties under township organization, are corporations. Hurd’s R. S. 1899, Chap. 139, Sec. 38. And commissioners of highways are quasi corporations. The People v. Madison County, 125 Ill. 334. The corpoi rate acts of the town are required to be recorded by the clerk. Secs. 112 and 113 of said chapter.

The corporate acts of the highway commissioners are likewise required to be recorded. Sec. 10 of same chapter. Under these provisions all corporate acts, whether of townships or of highway commissioners, are provable by record evidence only. People v. Madison County, supra.

The court erred in admitting the evidence.

Whether the town of Bridgeport was operating under the cash system or under.the labor system for the payment of the “ road tax,” we regard for the purposes of this case as unimportant, since under either system the commissioners have ample power to levy taxes for the payment of damages occasioned by the laying out of this road. Under either system the tax sought to be levied is payable in money only. People v. Suppiger, 103 Ill. 434; Sec. 15, Chapter 121, Hurd’s R. S. 1899. If they are in fact operating under the former system, section 15 of chapter 121, supra, gives them ample power to make this levy, to be held as a separate fund; if they are operating under the latter system, there is ample power under section 119 of the same chapter. Under the latter section they are required to ascertain the different amounts of money needed for the purposes committed to their charge, among which is the payment of damages for laying out new roads; and when these amounts have been determined by the commissioners, they are required by the statute to levy the amount necessary for the different objects needed, not to exceed, however, the sum of forty cents on $100 of assessed property valuation. All this money belongs to the highway commissioners. People v. Suppiger, supra. The amount of money needed as compared with the assessed valuation of the property and the rate of levy, may not make it possible that a single year’s levy shall discharge all the obligations that are imposed on the corporation; if this is true, the power and duty to make successive levies, are a continuing obligation on the corporation, until the object aimed at has been accomplished, unless some other legal obstacle should intervene and render the duty inoperative.

Whether appellees have in fact levied the taxes provided for, either in section 15, or in section 119, is ajnatter which is not properly proven by parol evidence; and inasmuch as there may be in existence the record evidence showing that ■they have fully complied with the duties enjoined on them, we are unable to order the issuance of the writ on the record which is before us.

The road has been legally laid out, the law has pointed out the steps by which payment may be made, and when such payment has been made the road may be ordered opened, if not too late to do so.

The question whether a mandamus ought to issue in this case in view of the fact that the road should, in accordance with section 30, chapter 121, Hurd’s R. S. 1899, be opened within two years after it was laid out, we do not decide, because the point has not been raised. The ordinary rule is, that a mandamus will not issue unless it can be made effectual, as a remedy. Hayes v. Morgan, 81 Ill. App. 605.

For the error in admitting parol evidence'that the town of Bridgeport was operating under the road labor tax system, and in admitting parol evidence that the commissioners had in fact levied all the taxes they were authorized by law to levy, the judgment is reversed and the cause is remanded to the Circuit Court for further proceedings in accordance with the views herein expressed. Reversed and remanded.


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    W. H. Cox v. Commissioners of Highways.
    1. Freehold — Involved in a Controversy over the Existence of a Highway. — In a prosecution for obstructing a highway where the ground of controversy is whether a legal highway exists at the place where the obstruction was placed, one party claiming it did exist, and the other claiming it did not, a freehold is involved and this court has no jurisdiction of the case.
    Prosecution for Obstructing a Highway. — Appeal from the Circuit Court of Clinton County; the Hon. Samvel L. Dwight, Judge, presiding. Heard in this court at the February term, 1901.
    Dismissed.
    Opinion filed September 4, 1901.
    Van Hoorebeke & Louden, attorneys for plaintiff in error.
    Thomas E. Ford, attorney for defendant in error.
   Opinion per Curiam.

This suit was brought before a justice of the peace in Clinton county, by defendants in error, against plaintiff in error, to recover a penalty for obstructing a public highway, and was appealed to the Circuit Court of that county, and on a trial there a judgment was rendered against plaintiff in error for 83 and costs, and this writ of error was sued out to secure a reversal of the judgment.

Plaintiff in error is in possession and claims to be the owner of the land over which the alleged road runs.

There are no written pleadings in the case, but from the evidence it appears that the ground of controversy is, whether a legal highway exists at the place where the obstruction is said to have been placed; the defendants in error claiming that such a highway does exist, and plaintiff in error denies its existence. It is evident, therefore, that a freehold is involved and this court has no jurisdiction of the case. The writ of error should have been sued out of khe Supreme Court. Town of Brushy Mound v. McClintock, 146 Ill. 643; Robeson v. Hutten et al., 77 Ill. App. 464, and cases there cited.

The appeal is dismissed, with leave to plaintiff in error to withdraw record and abstracts from the files.