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were entitled to the same unprejudiced treat- that his negligent conduct caused or contriment as individuals under like circumstances.
buted to his death, and brings the case withHeld, that defendant was not prejudiced by the modification of the instruction so as to eliminate
in the rule where negligence is held to become defendant's particularization as a brewery com- a question of law. It was held in Chicago pany and to charge that defendant corporation West Division Railway Co. v. Ryan, 131 Ill. was entitled to the same fair and unprejudiced
474, 23 N. E. 385, that even though a pertreatment as an individual under like circumstances, etc.
son's own negligence exposed him to risk,
if the proximate cause of his injury was the Appeal from Appellate Court, Fourth Dis
result of the defendant's failing to use ortrict.
dinary care to avoid injuring him after beAction by Josephine Houck, as administra
coming aware of his danger, the defendant trix, etc., against the Star Brewery Com
would be liable. It was also held in that pany. From a judgment of the Appellate
case that it was not necessary to a recovery Court affirming a judgment for plaintiff, de
that the defendant should have actually fendant appeals. Affirmed.
known of the danger to which the injured L. D. Turner, for appellant. Wise & MC- party was exposed, but that he would be liNulty and William P. Launtz for appellee. able if he has "sufficient notice or belief to
put a prudent man on the alert, and he does FARMER, J. This is an appeal from a not take such precautions as a prudent man judgment of the Appellate Court affirming a would take under similar notice or belief." judgment of the circuit court for $2,500 See, also, Lake Shore & Michigan Southern against appellant for negligently causing the Railway Co. v. Bodemer, 139 Ill. 596, 29 N. death of appellee's intestate, a b y 10 years E. 692, 32 Am. St. Rep. 218. In determining and 10 months old. The deceased boy, while the question whether deceased was guilty engaged in playing a game of "tag" in one of of contributory negligence it was proper for the public streets of East St. Louis with oth- the jury to take into consideration his age, er boys, was driven upon and run over by intelligence, experience, and ability to una team hitched to one of appellant's loaded derstand and comprehend danger and to brewery wagons, and thereby killed. The care for himself. Illinois Iron & Metal Co. team was in charge of, and driven by, ap- v. Weber, 196 Ill. 526, 63 N. E. 1008. We pellant's servant. The evidence, as to the think the court properly denied appellant's circumstances of the boy's being run over, motion to direct a verdict in its favor. was conflicting. Appellee's evidence tended Three counts of the declaration set up to show that the boy was standing in the the following ordinance of the city of East street a few feet from the sidewalk, with St. Louis : his face turned in the opposite direction "496. No person shall ride or drive any from which the wagon was approaching, but horse, mule or other animal in or through any that he was in plain view of the driver for a street or avenue or alley of the city of East distance of 85 feet if the driver had been St. Louis with greater speed than at the rate observing where he was driving. Appel- of six miles an hour, nor shall, in turning the lant's evidence tended to show that the boy corner of any street, avenue or alley in the suddenly and unexpectedly ran in front of city, ride or drive any such animal with and against the horses, and was thereby greater speed than at the rate of four miles knocked down and run over. At the conclu- an hour, nor shall willfully or heedlessly sion of plaintiff's evidence, and again at the ride or drive any such animal so that the conclusion of all the evidence, appellant mov- same, or any vehicle attached thereto, shall ed the court to direct a verdict in its favor, come into collision with any other animal and the rulings of the court in denying these or vehicle, or strike against any person, motions are assigned as error. To justify a under a penalty, in each and every case, of reversal on those grounds would require us not less than $5 nor more than $100." to hold that there is no evidence in the record One of the counts charges that the team fairly tending to support the plaintiff's cause was driven at a high rate of speed in excess of action. This cannot be said of the evi. of that allowed by the ordinance; another dence in this record. The trial court prop- one, that appellant, by its servant, willfully erly submitted to the jury to determine the and heedlessy drove said wagon and team question of the weight and credibility of the of horses in a willful and heedless manner; testimony, and their verdict having been ap- and another, that defendant, by its servant, proved by the judgment of the circult court carelessly and negligently drove said team and that judgment having been affirmed by and wagon in a careless and negligent manthe Appellate Court, we cannot weigh the ner. The court permitted appellee to introtestimony, but can only examine and deter- duce the ordinance in evidence over the obmine whether there was any evidence fairlyjections of appellant, and afterwards refused tending to prove the plaintiff's case.
to exclude it from the consideration of the It is contended by appellant that the de- jury upon appellant's motion, and it is here ceased boy could have easily seen and heard urged that there was no testimony that apthe approaching wagon if he had been ex- pellant's servant violated the ordinance, and ercising reasonable and ordinary care, and that the court erred in allowing it to go to the jury. A number of witnesses testified on The refusal of the court to allow this proof this subject for plaintiff below, some of whom to be made is complained of by appellant as said the team was being driven in a lope, erroneous. The offered evidence was not some said a gallop, others a fast trot, and within the realm of expert testimony. That others a pretty fast trot. There was also a wagon and team passing along a street unevidence tending to show that when some der the circumstances mentioned would make distance from where deceased was run over, a noise is a matter of common knowledge. and while in plain view of the place and all | Expert evidence is only admissible to prove the surroundings, the driver applied a whip matters not within the common knowledge or the lines to his team, causing them to of ordinary persons. travel at an increased rate of speed. The While errors are assigned by appellant driver himself testified he was going at about upon the refusal of the court to give a numsix miles an hour, which was the maximum ber of instructions, in its argument it discussspeed allowed by the ordinance. But this es only the refusal to give instruction No. 7 ordinance did not apply solely to the speed and the modification of No. 13. Instruction at which a team might be driven; it also pro- No. 7 told the jury that unless the evidence vided that no person should "willfully or showed the negligence of appellant's driver heedlessly ride or drive any such animal so was such as would permit appellant to rethat the same, or any vehicle attached there. cover from him for injuries caused by his to, shall come into collision with any other | negligence their verdict should be for deanimal or vehicle, or strike against any per- fendant. We know of no authority to susson.” One of the counts based upon this tain this instruction. Whether the servant ordinance charged that the team was driven could be held liable to the master would deby defendant's servant in a willful and heed-pend upon whether he was acting in accordless manner, so that it struck the deceased, ance with his master's instructions. If in throwing him to the ground and running driving at a rate of speed in excess of that over him, and thereby causing his death. allowed by the ordinance or in utter disre. There was evidence tending to sustain this gard of the safety of persons on the street count; and even if there had been no evi. he was obeying the master's directions he dence tending to prove that the team was could not be held liable to the master. If driven at a rate of speed in excess of that the rule of law is as stated in the proposed allowed by the ordinance, the court prop- instruction, it would have required determinerly admitted the ordinance in evidence and ing the question of whether the driver was properly refused to exclude it.
liable to appellant, and this would involve It is next urged that deceased was playing the determination of an issue between differin the street in violation of an ordinance for- ent parties from those to the suit on trial. bidding persons to engage in games, sports, The law makes the master liable to third or amusements in the streets or upon the persons for the negligent conduct of the servsidewalks which would have a tendency to ant while acting within the line of his duty frighten horses or interfere with teams, ve- and in obedience to the master's authority, hicles, or persons passing along the streets and this is independent of whether there is or sidewalks. We do not think sport of the any liability of the servant to the master. character deceased and his little playmates The instruction was properly refused. were engaged in, as shown by the evidence, Appellant offered the following instrucwas within the prohibition of this ordinance. tion : It is also to be borne in mind that appellee's 13. "The jury are instructed that it is evidence tended to show that at the time de- their duty to consider this case in all its ceased was struck and run over he was not bearings, the same as they would a case berunning or walking, but standing still. Even tween two private citizens, instead of a case if deceased had been engaged in the viola- in which the defendant is a brewery comtion of an ordinance, to bar a recovery on pany. Brewery corporations are entitled to that ground it must appear that such viola- the same fair and unprejudiced treatment in tion of the ordinance was the proximate and courts of law as individuals would be under efficient cause of the injury. Lake Shore & like circumstances. In considering and deMichigan Soutliern Railway Co. v. Parker, ciding this case the jury should look solely 131 Ill. 557, 23 N. E. 237; Pennsylvania Co. to the evidence for the facts and to the inv. Frana, 112 Ill. 398; Beach on Contributory structions of the court for the law of the Negligence, $ 45. The team appellant's, serv- case, and find their verdict accordingly, withant was driving weighed about 2,700 or 2.800 out any reference as to who is plaintiff or pounds, the wagon weighed about 2,000 who is defendant.” pounds and was loaded with 10 or 12 half The court struck out the portions of the inbarrels of beer, weighing 200 pounds each. struction particularizing a brewery company The street he was driving along was paved and gave the instruction as modified, which with brick, and appellant offered to prove reads as follows: "The jury are instructed by expert testimony that the wagon and that it is their duty to consider this case in team traveling over the payed street would all its bearings, the same as they would a have made such a noise that if deceased had case between two private citizens. The debeen standing still he would have heard it. fendant corporation is entitled to the same fair and unprejudiced treatment in courts of Lyman, as trustee of the Grant Land Aslaw as an individual would be under like sociation, filed objections. From a judgment circumstances. In considering and deciding of confirmation, the objector appeals. "Rethis case the jury should look solely to the versed and remanded. evidence for the facts and to the instructions
Lyman, Busby & Lyman and Hayes Mcof the court for the law of the case and find
Kinney, for appellant. John J. Sherlock their verdict accordingly, without any refer
(Mastin & Sherlock, of counsel), for appellee. ence as to who is plaintiff or who is defendant." No prejudice could have resulted to
CARTWRIGHT, J. To the application of appellant from the court's action in modify- | appellee for the confirmation of a special ing the instruction. It had the full benefit
assessment to defray the cost of a concrete of the proposition of law contained in the
curb on various streets and avenues in the instruction as asked, and could not have
town of Cicero, appellant, as trustee of the been prejudiced by the modification.
Grant Land Association, filed objections that The judgment of the Appellate Court is
the improvement described in the ordinance affirmed.
was not the same as the one considered in Judgment affirmed.
the preliminary proceedings by the board of
local improvements and recommended by said (222 Ill. 379)
board, that no public hearing was held by LYMAN V. TOWN OF CICERO.
said board as required by law, and that the
estimate of the cost of the improvement was (Supreme Court of Illinois. Oct. 23, 1906.)
not itemized. The objections were overruled 1. MUNICIPAL CORPORATIONS - STREET IMPROVEMENT-VARIANCE BETWEEN RESOLU
and judgment of confirmation was entered. TION AND ORDINANCE.
The board of trustees of the town of In the proceedings before the board of local Cicero could only consider and pass an ordiimprovements of a city, a proposed improvement was described as a curb on certain speci
nance for the same improvement recommendfied sides of streets and avenues, without ex
ed by the board of local improvements, and, if cepting the roadways of intersecting streets. there was a substantial variance between the In the ordinance the roadways of intersecting
improvement recommended and the one destreets were excepted. Held, that there was no variance between the resolution and the ordi
scribed in the ordinance, such variance would nance.
be a good ground of objection to the special [Ed. Note.--For cases in point, see vol. 36, assessment. Smith v. City of Chicago, 214 Cent. Dig. Municipal Corporations, $ 812.] Ill. 155, 73 N. E. 346; Wetmore v. City of 2. SAME-NOTICE OF HEARING OF PROPOSED
Chicago, 206 Ill. 367, 69 N. E. 234. In the IMPROVEMENT -- STATUTES — RESOLUTION
proceedings before the board of local imSUFFICIENCY.
The local improvement act requires the provements the improvement was described board of local improvements, when adopting a as a curb on certain specified sides of the resolution for a proposed improvement, to fix streets and avenues, without excepting the the day and hour for the public hearing thereof, and to give notice of the time and place of the
roadways of intersecting streets and alleys, hearing. The board in fixing a day for a hear
while in the ordinance such roadways of ing failed to fix the hour or place therefor. intersecting streets and alleys were excepted. Held, that the resolution was not in compliance with the statute, and the court to support it
We do not regard the difference in the decould not presume that the clerk in the notice scription as a variance. In Mead v. City of given by him named an hour and place.
Chicago, 186 Ill. 54, 57 N. E. 824, where an (Ed. Note. For cases in point, see vol. 36,
ordinance provided for a curb and gutter Cent. Dig. Municipal Corporations, $ 782.]
along adjoining lots and blocks, but not 3. SAME.
across the roadways of intersecting streets The property owners affected by a proposed street improvement are entitled to a hear
and alleys, and the estimate of cost did not ing before the board of public improvements, exclude such roadways, it was said that the and, though the improvement might have been estimate must be read in the light of common inaugurated by the board in any event, the failure of the board to comply with the law in
knowledge and experience, and that the regard to fixing a, time and place for the hear
estimate would not be held to include an ing could not be deemed immaterial.
impossible and unlawful construction across 4. SAME--ESTIMATE OF COST OF IMPROVEMENT the roadways of intersecting streets and al-SUFFICIENCY. An ordinance provided for a concrete curb,
leys. That decision was followed in Rollo 7 inches thick and 30 inches deep, and for a v. City of Chicago, 187 Ill. 417, 58 N. E. 355. subfoundation, on which a bed of cinders should The common meaning of the word "curb," be laid. The estimate described only the con
as applied to a street, is a stone or row of crete portion of the improvement, and in addition estimated the cost of proceedings at a spec
stones, or a similar construction of concrete, ified sum. Held, that the estimate was insuffi- wood, or other material, along the margin cient for failing to state each part separately, of the roadway, as a limit to the roadway with the cost of each in separate items.
and a restraint upon and protection to the Appeal from Cook County Court; W. H. adjoining sidewalk space. The word could Hivebough, Judge.
not be applied to such an impassable conApplication by the town of Cicero for the struction across a roadway which would confirmation of a special assessment for the prevent travel, and the language used in the cost of a street improvement. David B. proceedings before the board of local im
provements will not bear that construction. sists of substantially different parts or ele
The next objection, that there was no pub- ments, the estimate must state each part or lic hearing as required by law, should have element separately, with the cost of each in been sustained. The local improvement act separate items. City of Peoria v. Ohl, 209 requires the board of local improvements, Ill. 52, 70 N. E. 632. The ordinance in this when adopting a resolution for a proposed case provided for a concrete curb 7 inches improvement, to fix by the same resolution thick and 30 inches in depth. It also prothe day and hour for the public considera- vided that a subfoundation 7 inches wide tion thereof, and to give notice of the time
should first be prepared by excavating the and place of such public consideration or
ground 3 feet below what would be the top hearing. The board adopted a resolution
surface of the curb when completed; that originating a scheme for this improvement,
upon such foundation should be laid a bed and by the same resolution fixed upon Sep
of cinders, which should be flooded and tember 28, 1905, at the hour of 8 o'clock p. m.,
thoroughly tamped ; that after being so floodat the town hall of Morton Park, in the town
ed and tamped the cinder bed above such of Cicero, as the time and place for the pub
foundation should be 6 inches thick; and lic hearing. The board met at the time desig
that the concrete curb should be constructed nated in the resolution, at the Morton Park
upon that bed and be back-filled with material Clubhouse, in the town of Cicero, which ap
from the excavation. The estimate of cost parently was not the place fixed in the resolu
was as follows: tion. But whether it was the same place 54,791 lineal feet of curb 7 inches
in thickness, 212 feet in depth, at or not, no notice was given of the meeting.
$.65 per lineal foot....
$35,614 15 There was no action concerning the improve- Cost of proceedings.
2,136 80 ment at that time, and the hearing was not
Total adjourned to any other time. The board
$37,750 95 afterward met on October 5th, and by resolu- The estimate described only the concrete tion fixed on November 2d for the public portion of the improvement 7 inches in thickhearing, but no hour or place for the hearing
ness and 212 feet in depth, and apparently was fixed. The clerk testified that he sent the excavation and foundation of cinders out notices of the hearing, but what the
was not included. If the cinder foundation notices contained does not appear. The was included, the cost of the curb was estiboard met on November 2d, and, after mak
mated in gross and not itemized. Counsel for ing some changes in the dimensions of the appellee say that if there are two items in an curb, resolved that the improvement should estimate the estimate is itemized and the law be made as so changed, and on December
satisfied, and that this estimate contains two 27th recommended it to the board of trustees. items--the cost of the curb and the cost of The resolution of October 5th was not a com
the proceedings. It is the cost of the impliance with the statute, as it fixed no place provement that is to be itemized for the or hour for the public hearing, but it is urged information of the property owners, and the that we should presume that the clerk named extent to which separate items are to be set an hour and place in his notices and that the down evidently depends upon the nature of defect was thereby cured. The clerk was the improvement, which may all be fairly innot authorized to fix either the hour or the cluded in one item or may consist of several. place, and the board, which was required
It is true that in the case of Hulbert v. City to do so, failed to fix either. We are not au- of Chicago, 213 Ill. 452, 72 N. E. 1097, one thorized to presume that the clerk did an act of the items consisted of the combined curb which he was not authorized by law to do, and gutter on cinders estimated by the lineal and any attempt by him to fix a time and foot, but that estimate showed that the cinder place would have been ineffectual.
foundation was included and other separate It is further argued that it was immaterial parts of the improvement were separately to the property owners in what form the estimated. We are not able to distinguish: proceedings before the board of local improve
this estimate from the one held insufficient ments were carried on, for the reason that
in City of Peoria v. Ohl, supra. they were not injured or inconvenienced by
The judgment is reversed, and the cause any failure to comply with the law. It may
remanded. be that the improvement would have been
Reversed and remanded. inaugurated by the board in any event, but
CARTER, J., took no part in the decision the property owners were entitled to the
of this case. protection of the law and to a public hearing, and the rule is that where a municipality attempts to fasten a charge upon the property
(222 Ill. 475) of an individual the law which authorizes
RUNDLE V. BOHRER. the creation of the charge or liability must (Supreme Court of Illinois. Oct. 23, 1906.) be followed.
REFORMATION OF INSTRUMENTS — MISTAKE The remaining objection was that the cost
Evidence in an action to reform a contract of the improvement was not itemized, as re
for the sale of land helil sufficient to show that quired by law. Where an improvement con- there was a mutual mistake by which the lot
Action by Rosa E. Bohrer against Daniel
conveyed was described as extending a certain description different from the contract as distance from the center of the street, instead reformed and corrected, and dissolving the of from its boundary.
injunction in other respects. From that Appeal from Circuit Court, Champaign
decree an appeal was taken to this court. County; Solon Philbrick, Judge.
The defendant owned a tract of land of
two acres on Prospect avenue, in the city of P. Rundle. From a decree in favor of con
Champaign, on which there were two houses. plainant, defendant appeals. Affirmed. The tract had not been platted into lots or
blocks, and the fee to the center of the street Ray & Dobbins and Walter B. Riley, for
was in the defendant, subject to the public appellant. Manford Savage, for appellee.
easement. One of the houses was rented to
L. D. Bohrer, husband of the complainant, CARTWRIGHT, J. The parties to this and he occupied it with his family. He suit entered into a written contract on June negotiated, as agent of his wife, with de27, 1903, by which appellant, Daniel P. Run- fendant for the purchase of a lot 80 feet dle, agreed to convey to appellee, Rosa E. wide and extending back 140 feet, on wbich Bohrer, a lot on Prospect avenue, in the the house stood, and they agreed upon the city of Champaign, with a frontage of 120 terms of the purchase. They went to the feet and extending back 132 feet, and ap- office of Ray & Dobbins, attorneys, and had pellee agreed to pay $2,500 therefor in month- a contract drawn for the purchase by comly payments, with interest, the last install
st install- plainant of that lot. The defendant had his ment to be paid on or before July 1, 1908. deeds with him, which described his tract Payments were made up to the one which of land as commencing at a quarter section was due on December 1, 1904, and appellee corner which was in the center of Prosoffered to pay the full amount due at that pect avenue, and the east line of the tract date. Appellant was willing to accept the was in the center of that avenue. The de amount and make a conveyance of the lot scription of the lot to be conveyed to the as it was described in the written contract, complainant was taken from the deeds, and extending to the center of Prospect avenue, the point of beginning was written as 16 but the appellee claimed that there was a rods north of the quarter section corner, mistake in the writing and that the front and the lot as described extended to the line of the lot which she purchased was center of the avenue. An atlas was brought the west line of the avenue, and that it in and the lot was marked. on it to the cen. extended back 132 feet from that line. Ap- ter of the avenue. The parties afterwards pellant insisted that 2 rods of the lot was in agreed to a change in the dimensions of Prospect avenue, and refused to make a the lot, and it was to be 120 feet wide and conveyance except in accordance with the 132 feet deep. Defendant procured a blank written contract. Appellee filed the bill
form and under his supervision complainant in this case, alleging that there was a mutual copied the old contract, changing the figures mistake of the parties in the description of in the description to correspond with the the property, and asking the court to cor- new agreement. It was agreed that the rect the mistake and to enforce the specific parties should build a fence on two sides performance of
of the contract. Appellant of the lot at their joint expense, and a brought a suit in ejectment against appellee fence was built accordingly, running east for the possession of the premises, in pur- and west, and then north the width of comsuance of a notice given by him on Decem- plainant's lot, for the purpose of fencing in ber 9, 1904, requiring her to vacate the the property which defendant had sold to premises. Appellee amended her bill, setting complainant. This fence was built very up the commencement of the ejectment suit near where the line would be according to and praying for an injunction against its the complainant's version of their agreeprosecution. A temporary injunction was ment, and 30 feet or more from the line as granted, and, appellant having answered the described in the written contract and claimamended bill, the issues were referred to a ed by the defendant. The complainant, her special master in chancery to take the evi- husband, her daughter, and son all testified dence and report his conclusions of law and that defendant and Mr. Bohrer measured fact. The master took the evidence and re- off the lot sold to complainant before the ported that there was no mutual mistake contract was signed, and that they began in the description of the lot and recommend- the measurement from the line of Prospect ed that the injunction should be dissolved avenue, 8 inches inside of the sidewalk. and the bill dismissed. The cause was Two witnesses, apparently disinterested, tesheard on exceptions to the master's report, tified that they saw the parties measuring and the court sustained the exceptions and the lot, but they did not know from what entered a decree reforming the contract ac- point the measurements were taken. As cording to the allegations of the bill, making against this testimony the defendant dethe injunction perpetual so far as to re- nied that he made any measurements or strain appellant from prosecuting the suit assisted in making any. Under the evi. in ejectment or any other suit to recover dence it must be regarded as settled that possession of the premises by virtue of any the lot which defendant agreed to sell was