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REPORTS



OP



CASESATUWAND IN CHANCERY



ARGUED AND DETERMINED IN THE



SUPREME COURT OF ILLINOIS.



VOLUME 181.



Containing Cases in which Opinions were filed in October,
1899, AND Cases in which Rehearings were de-
nied AT THE October Term, 1899.



ISAAC NEWTON PHILLIPS,

REPORTER.



SPRINGFIELD:

1900.



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Entered according to Act of Congress. In the year 1900, by

ISAAC urswsos ptaidAPs,

In tUe Office of the Librarian of Oongress at Washington



ParUagrt^h Printing and Stationery Co.

PrUUer9, Sterwtypert, Binders,

Jiiootninglon, lU,



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JUSTICES OF THE SUPREME COURT

DURING THE TIME OF THESE REPORTS.



JAMES H. CARTWRIGHT, Chief Justice.
ALFRED M. CRAIG,
BENJAMIN D. MAGRUDER,

JACOB W. WILKIN,

> Justices.
JESSE J. PHILLIPS,

JOSEPH N. CARTER,

CARROLL C. BOGGS,



ATTORNEY GENKRAL,

EDWARD C. AKIN.



REPORTER,

ISAAC NEWTON PHILLIPS.



CLERK FOR THE SOUTHERN GRAND DIVISION,

JACOB O. CHANCE.



CLERK FOR THE CENTRAL GRAND DIVISION,

ALBERT D. CADWALLADER.



CLERK FOR THE NORTHERN GRAND DIVISION,

CHRISTOPHER MAMER.



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"Table of Oases

REPORTED IN THIS VOLUME.



A PAGE.

Abbott ads, Carterville Coal

Co 495

Adams V. Adams 210

Adamski v. Wieczorek 361

Akin ads, Hogan 448

Alton, City of, i\ Fishback.. 396
Andrews A Co; ads, Slegel. . 350

B
Hebrens ads. Franklin Print-
ing- and Publishing Co 340

!Bellefontaine Improvement

Co. r. Niedringhaus 426

Bible ads. Tracy 331

Blair v. People exrel 460

Bock ads. Kuglin 165

Boddie ads. Brewer & Hof-

mann Brewing Co 622

Bode ads. Saeger 514

Bogardus v. Moses 554

Bokamp ads. Consolidated

Coal Co 9

Botkln ads. Robison 182

Bowman ads. People exrel.. 421
Brewer & Hof mann Brewing
Co. V. Boddie 622

c

Callender ads. Gray 173

Carterville Coal Co. v. Ab-
bott 495

Casey r. Kimmel 154

Catholic Order of Foresters

r. Fitz 206

Centralia, City of, i>. Nagele. 151



PAGE.

Cheney y. Cross 31

Chicago,Burl.&QuincyR.R.
Co.acZs. Chicago Gen.Ry.Co. 605

Chicago, City of, ads. Cruick-
shank 415

Chicago, City of, ads. Jarrett 242

Chicago, City of, ads. Penn-
sylvania Co 289

Chicago & Eastern Illinois
R. R. Co. ads. Overtoom. . . 323

Chicago General Ry. Co. v.
C, B. &Q. R.R. Co 605

Chicago, Wilmington & Ver-
milion Coal Co. V. People . 270

Clark & Co. ads. Kent 237

Colgate ads. Trevor 12a

Comrs. of Wild Cat Drainage
District ads. People ex rel.. 177

Commonwealth Loan and
Building Ass.ads. Thornton 456

Consolidated Coal Co. v. Bo-
kamp 9

Crosby ads. Grand Pass Shoot-
ing Club 266

Cross ads. Cheney 31

Cruickshank v. City of Chi-
cago 415

Cummings v. West Chicago
Park Comrs 136

D

Davis ads. Sanford 570

Day, J/ire 73

Dixon, City of, v. Scott. 116

Duncan ads. Martin 120



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VI



TABLE OP CASES REPORTED.



[181 111.



E PAGE.

Engflish V. Landon 614

Erickson ads.Kewanee Boiler

Co 549

Ervington r. People 408

F

Fidelity and Casualty Co. v.

Sittigr Ill

Field t'. Village of Western

Springs 186

Finch r. Galigher 625

Fishback ads. City of Alton. 396
Fitz ads. Catholic Order of

Foresters 206

Fitzgerald v. Lorenz 411

Fort Dearborn Nat. Bank

ads. Wyman 279

Franklin Printing and Pub-
lishing Co. V, Behrens 340

G

Gadwood v. Kerr 162

Galesburg and Great East-
ern R. R Co. r. Milroy . . . . 243

Galigher ads. Finch 625

Gallatin, County of, ads. Vil-
lage of Ridgway 521

Gibson v. Nelson 122

Glos V. Huey 149

Glos ads. Roach 440

Gordon v. Winston 338

Graham ads. Milwaukee Me-
chanics* Ins. Co 158

Graham v. People 477

Grand Pass Shooting Club v.

Crosby 266

Gray i\ Callender 173

Gunton v. Hughes 132

M

Hallo way v. People 544

Hammond, Village of, v. Lea-

vitt 416

Hawes ads. Hunt 343

Heenan & Co. ads. Niagara

Fire Ins. Co 575

Hogan V. Akin 448



PAGE.

Home Savings Bank ads. Na-
tional Home Building Ass. 35

Huey ads. Glos 149

Hughes ads. Gunton 132

Hunt V. Hawes 343

Hunt V. Sain 372

I

Illinois State Board of Health *
I?. People ex rel 512

Iroquois Furnace Co. v. Wil-
kin Manf. Co 582

J

Jarrett v. City of Chicago. . 242

K

Kellogg V. Peddlcord. 22

Kelly t\ Parker 49

Kennett ads. Kruse 199

Kent V. Clark «& Co. 237

Kerr ads. Gadwood 162

Kewanee Boiler Co. v. Erick-
son 549

Kimmel ads. Casey 154

Knapp, Stout & Co. Company

r. Ross 392

Knorst v. Knorst 347

Kruse v. Kennett 199

Kuglin V. Bock 165

L

Landon ads. English 614

Langlois v. McCullom 195

Lawrence v. Lawrence 248

Leavltt ads. Village of Ham-
mond 416

Lischinski ads. Seaverns. . . . 358

Lorenz ads. Fitzgerald 411

Lowmaster ads. Wilson 170

M

Mack V. Mcintosh 633

Martin v. Duncan. 120

McCullom ads. Langlois 195

McElvain ads. Travers 382

Mcintosh ads. Mack 633



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181 DIJ



TABLE OF CASES REPORTED.



VII



PAGE.

Meadowcroft r. Winnebago
C!ounty ! 504

Milroy ads-Galesburg & Great
Eastern RR. Co 243

Milwaukee Mechanics' Ins.
Co. V, Graham 158

Modem Woodmen of Amer-
ica ads. Park 214

Morrow ads. People exrel... 315

Morse ads. Rochester Loan
and Banking Co 64

Moses ads, Bogardus 554

N

Nagele ads.City of Central ia 151
National Home Building Ass.

17. Home Savings Bank .... 35

Nelson ads. Gibson 122

Niagara Fire Ins. Co. v. Hee-

nan & Co 575

Niedringhaus ads. Bellefon-

taine Improvement Co. . . . 426
Nieman v. Schnitker 400



Overtoom v. Chicago & East-
ern Illinois R. R. Co 323

P
Park r. Modem Woodmen of

America 214

Parker ads. Kelly 49

Peddicord ads. Kellogg 22

Pennsylvania Co. v. City of

• Chicago 289

People ad«. Chicago, Wilming-
ton and Vermilion Coal Co. 270

People ex rel ads. Blair 460

People ex rel. v. Bowman 421

Peoi^e ads. Ervington 408

People ads. Graham 477

People ads. Halloway 544

People ex rel. ads. Illinois

State Board of Health. ... 512
People exreL V. Morrow — 315
People ex rel. v. Reddick 334



PAGE.

People ex rel. r. Schintz 574

People 605 rel. v. Wild Cat

Drainage District 177

Petefish ads. Trustees of

Schools 255

Prescott V. West Chicago

ParkComrs 194

R

Raftree ads. Wright 464

Reddick ads. People ex rel... 334

Reuter v. Stuckart 529

Rexroat v. Vaughn 167

Rid gway, Village of ,i?. County

of Gallatin 521

Roach V. Glos 440

Robison v. Botkin 182

Rochester Loan and Bank-
ing Co. V. Morse 64

Ross ads. Knapp, Stout & Co.
Company 392

s

Saeger v. Bode 314

Sain ads. Hunt 372

Sanf ord v. Davis 570

Schintz ads. People ex rel... 574

Schnitker ads. Nieman 400

Scott ads. City of Dixon 116

Seaverns v. Lischinski 358

Siegel V. Andrews & Co 350

Sittig ads. Fidelity and Casu-
alty Co Ill

Small ads. Watson Cut Stone

Co 366

Smith ads. Yockey 564

Stuckart ads. Reuter 529

T
Thornton v. Commonwealth

Loan and Building Ass 456

Tracy v. Bible. 331

Travers v. McElvain 382

Trevor v. Colgate 129

Trustees of Schools v. Pete-
fish 255



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VIII



TABLE OP CASES REPORTED.



[181 ni.]



V PAGE.

Vaughn ada. Rexroat 167

W

Walker V. Walker 260

Watson Cut Stone Co. ».

Small 366

West Chicai^o Park Comrs.

ads. Cummings 136

West Chicago Park Comrs.

ads, Prescott 194

Western Springs, Village of,

ads. Field 186

Wieczorek v. Adamski 361



PAGE.

Wild Cat Drainage District

ads, Peoplfe ex rel 177

Wilkin Manf. Co. ads, Iro-
quois Furnace Co 582

Wilson V, Lowmaster 170

Winnebago County ads,

Meadowcroft 504

Winston ads, Gordon 338

Wright V, Raf tree 464

Wyman v. Fort Dearborn
Nat. Bank 279

Y

Yockey v. Smith 564



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CASES



ARGUED AND DETERMINED



IN THE



Supreme Court of Illinois.



The Consolidated Coal Company op St. Louis

v.
Frank Bokamp.

Opinion filed June fi, 1899—Beheanng denied October 6, 1899.

1. Pleading — wfien objection to declaration is waived by pleading over.
An objection that the declaration of a servant injured by reason
of the defective condition of the place where he was working", failed
to alleg'e that he relied upon the master's promise to repair and
that a reasonable time had elapsed after such promise, is cured,
after verdict, by pleading- oven

2- NEGiJGENCEJ-^c/icn question of contributory negligence is for jury.
The question whether the acts of the plaintiff contributed to his
injury, so as to bar recovery, is for the determination of the jury,
where the minds of fair men would differ in their conclusions.

3. Instructions — when omission from instruction of element of recov-
ery is not ground for reversal. That an instruction for plaintiff, in a
suit to recover for an injury received while working after a promise
to repair defects, fails, in summing- up the essentials of recovery,
to neg-ative the idea that the danger was so imminent that ordi-
narily prudent men would not incur it, is not ground for reversal,
where the other instructions fully define due care and require the
plaintiff to be in the exercise thereof.



181
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10 Consolidated Coal Co. v. Bokamp.- [181 111.

4. Same— ?cAcn instruction on contrihutoi'y negligence is properly re-
fused. An instruction that plaintiff could not recover if he "did
any careless or neglig-ent act which materially contributed to his
injury," is properly refused, as he mig^ht, under such circumstances,
be entitled to recover if his acts or omissions were not the proxi-
mate cause of the injury.

5. Mines — statute concerning props has not superseded common law ob-
ligations of master to servant The statute requiring- mine owners to
keep a supply of props and timbers on hand, "so that the workmen
may at all times be able to properly secure said working"s for their
own safety," does not supersede the common law oblig^ation of the
mine owner with respect to the roof of the mine, so as to relieve
him from further responsibility after complying with the statute.

Consolidated Coal Co.. v. Bokamp, 75 111. App. 605, affirmed.

Appeal from the Appellate Court for the Third Dis-
trict; — heard in that court on appeal from the Circuit
Court of Macoupin county; the Hon. Robert B. Shirley,
Judge, presiditig.

Charles W. Thomas, and Prank W. Burton, for ap-
pellant.

Peebles, Keefe & Peebles, for appellee.

Mr. Justice Phillips delivered the opinion of the
court:

The statement of facts by the Appellate Court is as
follows:

"This suit was commenced by appellee to recover for
injuries sustained by him while working as a driver in
appellant's coal mine. The mine is located at Gillespie,
in Macoupin county. At the time of the injury complained
of it had a main entry running north from the bottom of
the shaft, from the east wall of which various side entries
had been driven. The side entries ran east, at right angles
with the main entry. The injury took place at the ninth
east entry. Appellee had been in the employ of appel-
lant as a driver in this mine for about three years. It
was his duty to drive a mule hauling empty cars from the



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Ocl 'MJ Consolidated Coal Co. v. Bokamp. 11

shaft bottom to the working places, and, when loaded,
back to the shaft bottom. The ninth east entry was about
eight feet wide and six feet high. It extended about
a quarter of a mile from the main entry. The coal was
being mined from rooms adjoining it by a machine with
a capacity of forty-eight boxes a day. Near the east end
of the east entry was what was called a *back entry,'
running in a north-easterly direction from the ninth east
entry. At this point there was a switch. In doing his
work it was the practice of appellee to couple onto four
empty boxes on a switch in the main entry, haul them
out that entry to the ninth east, thence out the ninth
east to the back entry, there leave two of them on the
west side of the switch while he went on down the entry
to the place where the coal was being mined and loaded,
exchange the two empties taken with him for two loaded
boxes, haul the two loaded ones up to the east side of
the switch, stop them, then take his other two empties
into the back entry, exchange them for two loaded boxes
and bring them out the back entry to the switch. As the
mule pulling the cars approached the turn at the switch,
appellee would step from his seat on the front box, go
across to the ninth east track and start the two loaded
boxes which he had left standing there. There was a
down grade from that point west. After starting the two
loads he would follow after the mule, moving slowly
with the other two, and the two started would follow him.
Some twenty feet from the point where he would start
the cars was a wide place in the entry on the north side
of the track. At this point he would pass around to the
right of the cars in front of him and mount the seat which
he had left when he went to start the other cars. He
would then drive down the g^ade and up the one that
was further on. After reaching the top of the second
grade he would detach from the two first and return for
the two cars started, which he would haul up to the oth-
ers, couple on and proceed with the four toward the shaft.



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12 Consolidated Coal Co. v. Bokamp. [181 lU.

Some three or four days before he was hurt he noticed
that two cross-beams supporting a portion of the roof of
the ninth east, a short distance west of the switch and
at the wide place mentioned, were cracked, and sagged
down in the middle. On the Saturday before he was in-
jured on Tuesday, he claims that he notified his pit-boss,
C. J. Ramsey, of the dangerous condition of the roof at
that place, and that Ramsey promised to have it repaired.
On the day that he was injured he had made several trips,
finding the ground underneath the sagging cross-beams
clear and all right. On the trip when he met his accident
he had taken his last two empties into the back entry and
returned with two loads. He had started the two loads
which had been left to the east side of the switch and
had walked to the wide place. While trying to mount his
seat on the front car, as was his wont, his right foot was
caught on some slack and top coal, as he contends, which
had been precipitated from the defective roof above since
the time he passed with the empties, and he was thrown
forward and jerked off by the timber which supported one
end of the broken cross-beams. He was hurled in front
of the first car, which so crushed and mangled him as to
paralyze both lower limbs and render the amputation of
one of them necessary."

A trial resulted in a verdict in favor of the api^ellee
for $5150, which, on appeal, was affirmed by the Appellate
Court for the Third District.

The declaration consisted of five counts, only two of
which the court permitted to go to the jury. In one count
the negligence charged is, that the appellant allowed
certain props, cross-beams and supports which held the
roof of the mine, to become cracked, broken and unsafe,
and so to remain after promising to repair the same,
whereby they gave way and precipitated large quanti-
ties of coal and slack from the roof, which collided with
the cars and caused the injury. In the other the negli-
gence charged is the failure of appellant to furnish ap-



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Ocl. '99.] Consolidated Coal Co. v, Bokamp. 13

pellee a reasonably safe place to work in, in allowing the
track and place where he was wont to work and haul
cars to be obstructed with coal arid slack, props and other
material, so near the track as to injure him in the use of
it, and in allowing the supports for the roof to become
broken, whereby coal and slack were precipitated from
the roof, causing the injury.

Appellee contends that he was directed by the mine
manager to haul the cars in the manner he did, and that
in order to haul forty-eight cars a day, as was required
of him, it was necessary for him to perform his duty in
that manner. The testimony of appellant tends strongly
to show that the appellee was not injured at the place
alleged to have been defective, but at a point fifty feet
distant; that the defective timbers complained of were
not supports for the roof, but only to hook strings on;
that no complaint or notice had been made or given of
any 'defect by either appellee or Dickerson, the night mine
inspector, and that no report was made of any defect, as
shown by the book in which it was the duty of the in-
spector to make his report. Concerning the above points
of controversy there was a sharp conflict.

Appellant made its motion to take the case from the
jury at the close of appellee's evidence, which motion
was afterwards renewed at the close of all the evidence,
and it contended that the testimony showed that at the
time of the injury the appellee was not in the exercise
of due care and caution for his own safety, and that the
court should so find that fact as a matter of law. Three
witnesses, men working in the mine shortly before ap-
pellee was injured, named Brown, Casky and Opie, testi-
fied that they warned the appellee that he was running
a risk in handling the cars in the way he 'did. There is
no testimony showing the speed at which these cars were
going when appellee attempted to mount his seat on the
front car, nor does the evidence indicate that the speed
was such as made it a matter of imminent hazard so to do.



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14 Consolidated Coal Co. v. Bokamp. [181 III.

After verdict appellant filed its motion in arrest of
judgment, for the reason set forth that neither of the
counts which the court allowed to go to the jury was
sufficient to support the same. The errors assigned in
the Appellate Court were in denying the motion for ar-
rest and in entering judgment on the verdict. The errors
here assigned are, the Appellate Court erred in permit-
ting judgment and in not reversing and remanding the
cause. The points relied upon by appellant we shall
consider here in the order named in its brief.

It is contended that the declaration was defective;
that it is not supported by the testimony; that there is no
direct averment of the promise by the appellant, through
its manager, to repair the alleged defect, or notice of it;
that there is no allegation that a reasonable time had
elapsed after the promise to repair the supposed defect,
and no averment that appellee relied upon the promise
and thereby subjected himself to the danger. The alle-
gations in the first count of plaintiff's declaration which
was allowed to go to the jury are, after setting forth the
nature of his employment in the mine, that the defend-
ant permitted certain supports which held up the roof
along the track and prevented clods, coal and other ma-
terial from falling upon and obstructing the same, to be-
come cracked, broken and unsafe, and to so remain after
promise of the defendant to the plaintiff to fix and make
safe said props, whereby the said props, cross-beams and
supports broke down under the pressure of said roof and
obstructed the said track, so that said cars and boxes so
hauled and conducted along said track by the plaintiff,
he being in the exercise of due care and caution for his
own safety, collided with and struck said obstruction,
throwing the plaintiff across the track, whereby the in-
jury resulted. It will be seen that from this declaration
the appellant had notice of the points relied on, viz., no-
tice of the defect and that such defect caused the injury,
and that the plaintiff was in the exercise of due care and



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Od. 'MJ Consolidated Coal. Co. v. Bokamp. 15

caution for his own safety. This, so far as stating a
cause of action, is suflftcient, and while on special demur-
rer the declaration might have been objectionable, on the
gp-ounds that it failed to allege that the appellee relied
upon the promise to repair, and that a reasonable time
had elapsed after the promise to repair the supposed de-
fect, the objection after verdict is cured. ChicagOy Burling-
ton and Quincy Railroad Co, v. Warner, 108 111. 538; Chicago,
Burlington and Quincy Railroad Co. v. Harwood, 90 id. 425;
Chicago and Alton Railroad Co. v. Clausen, 173 id. 100.

Appellant contends that the evidence in this case
fails to show that the plaintife was in the exercise of due



Online LibraryIllinois. Supreme CourtReports of cases at law and in chancery argued and determined in ..., Volume 181 → online text (page 1 of 61)