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64 N. E. 282; Pioneer Construction Co. v. Howell, 189 III. 123, 59 N. E. 535; Armour v. Goikowska, 202 Ill. 144, 66 N. E. 1037; City of La Saile v. Kostka, 190 Ill. 130, 60 N. E. 72: Norton v. Volzke, 158 Ill. 402, 41 N. E. 1085, 49 Am. St. Rep. 167. The evidence teads to show that appellee, with other employés of appellant, was pushing the truck over the floor towards the place where the pot, consisting of five and a half rings or boxes of hot castings piled one upon the other, was to be set in position and left to cool. The evidence also tends to show that these hot pots, filled with hot iron, weigh from 2,000 to 2,500 pounds, and are taken on the truck over this floor. The evidence also tends to show that the corner of one of the cast-iron plates, of which the annealing floor was constructed, said plate being two feet square, had been broken off and removed before appellee was engaged in the work which resulted in the injury to him, and that there had thereby been left in the floor a hole, into which one of the wheels of the truck ran while appellee and the others were pushing the truck. It is unnecessary to consider the question whether this hole in the floor was large or small. The hole was large enough to obstruct the progress of the truck, and to cause the pot or pile of boxes, containing hot castings, to tip or tilt, and it became necessary to get the wheel out of the hole, in order to continue the movement of the truck, with Its load, to the place where it was necessary to place it, in order that the castings might be cooled. It was a part of the duty of the appellee to push the truck over the floor, and, in view of the fact that this hole was in the floor, the appellant did not furnish a safe place for the appellee to work in or upon. The evidence is clear and conclusive that the appellee had no knowledge of this hole in the floor while he was so at work, or prior to his entering upon the work. The evidence tends to show there were scales or packing upon the floor of the room, which covered the same and concealed the hole from view.

Counsel for appellant claim that appellant cannot be held liable, because it had no notice of the existence of the hole in the floor prior to the happening of the accident. The rule in such cases is that the master is liable where the circumstances are such that he ought to have had notice of the defective condition of the cause of the injury, whether he had actual notice or knowledge or not. The master cannot screen himself from liability upon the ground that he did not know of the defects in his appliances if he might have known of them by the exercise of due care. "The law will imply and infer notice of any defect which by the use of ordinary care might have been known to the master." Metcalf Co. v. Nystedt, 203 Ill. 333, 67 N. E. 764; Whitney & Starrette Co. v. O'Rourke, 172 Ill. 177, 50 N. E. 242; Consolidated Coal Co. v. Haenni, 146 Ill. 614, 35 N. E. 162. It was the duty of the appellant to see that the floor was

clean and free from such obstructions as concealed the plates of the floor. It was the duty of the appellant to see that the iron plates in the floor were unbroken, and that the floor was in good repair and safe condition for use by its servants in the performance of the work required of them. In such cases the employer is negligent if he fails in the duty of inspection. Here it certainly was the duty of the appellant to inspect the floor, and, upon discovery of the hole by means of such inspection, it was its duty to repair the broken plate.

In Armour v. Brazeau, 191 Ill. 117, 60 N. E. 904, and in Wrisley Co. v. Burke, 203 Ill. 250, 67 N. E. 818, we held that "the servant is not to be deemed as having notice or knowledge of such defects and insufficiencies as can be ascertained only by investigation and inspection, for the purpose of ascertaining that there is no danger," and in those cases we said: "While there is no absolute duty to keep appliances in safe condition, there is a duty to use reasonable care to keep them fit, and this duty may require inspection at reasonable intervals, and the employment of such tests as will reveal the condition of the machinery or appliances. This duty of inspection rests upon the employer, and not upon the employé, and depends upon the character of the machine or appliance, since ordinary care may require an inspection oftener in one case than in another."

The evidence being undisputed that the defect in the floor existed, we are unable to say that appellant could not have known of the existence of the defect by the exercise of due

care.

The truck, while being moved over the floor, was attended by ten men. One of these men, named Bolton, was intrusted with the duty of controlling and guiding the movement of the truck. There is evidence tending to show that Bolton was the foreman of the truck, and that he ordered the other men engaged in moving it what to do and how to perform their work. There is evidence tending to show that the other nine men were under Bolton's charge, and that he had charge of the truck, and was steering the truck. One of appellant's own witnesses says that Bolton was the man who handled the truck, and told the other men what they were to do. When the wheel of the truck was caught in the hole while the men were pushing the truck, Bolton gave an order that they should pull the truck out. The evidence shows that they then all turned around, and began to pull in pursuance of his order, instead of pushing, as they had theretofore done. While they were thus endeavoring to pull the wheel out of the hole, the pot fell over and injured appellee. There is evidence tending to show that it would not have fallen if the wheel had not gone into the hole. It is claimed on the part of the appellant that the injury resulted from the act of Bolton in directing the men to pull the truck

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confers authority upon one of his employés to take charge and control of a certain class of workmen in carrying on some particular branch of his business, such employé, in governing and directing the movements of the men under his charge with respect to that branch of the business, is the direct representative of the master, and not a mere fellow servant, and all commands given by him within the scope of his authority are in law the commands of the master." City of La Salle v. Kostka, 190 Ill. 130, 60 N. E. 72, and cases there cited.

It is claimed, however, on the part of appellant that Bolton and the appellee were mere fellow servants, and that, therefore, appellee cannot recover on account of the negligence of Bolton, if Bolton was guilty of negligence. Whether or not Bolton and appellee were fellow servants was a question of fact to be determined by the jury, and was submitted to the jury under the instructions of the court, and upon this issue the jury found against the appellant. "The definition of fellow servants is for the court. Whether employés of the common master fall within that definition is a question of fact; hence whether or not the relation exists is a mixed question of law and fact. * The burden of proof to establish the relation is upon the defendant, and that, even though the plaintiff alleges the negative in his declaration." Hartley v. Chicago & Alton Railroad Co., 197 Ill. 440, 64 N. E. 382. Where the facts are conceded, or where there is no dispute whatever as to the facts, and they show beyond question that the relation of fellow servant exists, then the question may become one of law. Chicago & Eastern Illinois Railroad Co. v. Driscoll, 176 Ill. 330, 52 N. E. 921; Hartley v. Chicago & Alton Railroad Co., supra. In the case at bar, however, the question as to whether the relation of fellow servants existed between Bolton and appellee was a disputed question. The facts in relation to the same were not conceded. Three witnesses testifying for appellee and one for appellant swore, in substance, that Bolton was a foreman in charge of the other men, and invested with authority to direct their actions and their work, and this contention was contradicted by testimony offered by the appellant. There was here, therefore, a conflict in the evidence as to the existence of the relation of fellow servants, and therefore it was properly submitted to the jury.

Even if, however, the relation of fellow servants did exist between Bolton and the appellee, there is another principle, well settled by the decisions of this court, which has application to the facts shown by the record in

this case. The law is that where ao injury to a servant is the combined effect of the negligence of the master and of a fellow servant the servant may recover. Pullman Palace Car Co. v. Laack, 143 Ill. 242, 32 N. E. 285, 18 L. R. A. 215; Chicago & Northwestern Railway Co. v. Gillison, 173 Ill. 264, 50 N. E. 657, 64 Am. St. Rep. 117; Chicago Economic Fuel Gas Co. v. Myers, 168 Ill. 139, 48 N. E. 66; American Express Co. v. Risley, 179 III. 295, 53 N. E. 558. In the recent case of Armour v. Golkowska, 202 Ill. 144, 66 N. E. 1037, we said: "If an injury result from the negligence of the master combined with that of a fellow servant, and the injury would not have happened had the master observed due care for the safety of the injured servant, the master is liable." In the case at bar the appellant company was guilty of negligence in failing to keep the floor in a good and safe condition, as was evident by the existence of a hole into which one of the wheels of the truck sank; and if Bolton, regarded as a fellow servant with appellee, was also guilty of negligence in ordering the men to pull the truck out of the hole, instead of resorting to some other method of extricating it, or if Bolton was guilty of negligence in moving the pole or tongue of the truck up and down, it cannot be said that the injury was not caused by a combination of the negligence of appellant and of Bolton. Therefore appellant is liable. One is liable for an injury caused by the concurring negligence of himself and a third party to the same extent as for an injury caused entirely by his own negligence. Here there is evidence tending to show that if appellant's negligence was not the sole cause of the injury to appellee he was injured by the concurring negligence of appellant and Bolton.

It is said, however, that the existence of the defect in the floor was not the proximate cause of the injury to appellee. The position of appellant upon this branch of the case is that the pot, consisting of the boxes loaded with hot castings, did not fall when the wheel entered the hole in the floor, but that it fell after the wheel was in the hole, and in consequence of the efforts of the men to pull the wheel out of the hole. It is therefore contended that the proximate cause of the injury was the effort to extricate the wheel from the hole, and not the existence of the hole itself. It is charged that there is a variance between the declaration and the proof upon the alleged ground that, according to the averment in the declaration, appellee was injured in consequence of the truck running into the hole, while the proof, it is said, shows that the pot broke while the men were in the act of pulling, in a vain endeavor to extricate the wheel of the truck from the hole. It is to be observed that no appreciable time elapsed between the falling of the wheel into the hole and the breaking of the pot. The testimony tends to show that, as soon as the wheel of the truck ran into the hole in the

floor, the foreman of the truck gave the order to "pur out," and that the men all turned around and pulled, and as soon as they started to pull the pot broke in two and fell over upon appellee's arm. It is thus evident that the entry of the wheel into the hole, and the act of pulling in pursuance of Bolton's order, were all parts of one transaction; and it cannot be denied that but for the running of the wheel of the truck into the hole the appellee would not have been injured. Had not the truck run into the hole there would have been no necessity to attempt to pull it out, and appellee would not have been injured. One of the witnesses says that the pot would not have fallen if the truck had not gone into the hole.

The question whether or not the negligence of appellant was the proximate cause of the injury was a question of fact for the jury, and they have settled it against appellant. Pullman Palace Car Co. v. Laack, supra; City of Rock Falls v. Wells, 169 III. 224, 48 N. E. 440: Chicago & Eastern Illinois Railroad Co. v. Mochell, 193 Ill. 208, 61 N. E. 1028, 86 Am. St. Rep. 318; Chicago & Alton Railroad Co. v. Harrington, 192 Ill. 9, 61 N. E. 622; True & True Co. v. Woda, 201 Ill. 315, 66 N. E. 369; Armour v. Golkowska, supra.

"The general test as to whether negligence is the proximate cause of an accident is therefore said to be whether it is such that a person of ordinary intelligence should have foreseen that an accident was liable to be produced thereby. Proximate cause is therefore probable cause, and remote cause is improbable cause." 1 Thompson on Negligence, § 50; Armour v. Golkowska, supra.

In Village

of Carterville v. Cook, 129 III. 152, 22 N. E. 14. 4 L. R. A. 721, 16 Am. St. Rep. 248, it was charged as negligence that the city had constructed a sidewalk at an elevation of some six feet above the surface of the ground, and had not provided a railing for the protection of pedestrians. In commenting upon the latter case in Armour v. Golkowska, 202 Ill. 144, 66 N. E. 1037, we said (page 149, 202 Ill., and page 1039, 66 N. E.): "The plaintiff, a boy, was, by the inadvertent or negligent act of another boy, pushed from the sidewalk, and, there being no railing, fell to the ground and was injured, and we held that, although the primary cause of the injury was the act of the other boy, still that as the village was negligent in failing to protect the walk, and the injury was such as common prudence could have foreseen, the negligence of the village was to be regarded as the proximate cause of the injury, and the village was held liable to respond in damages. The same principle was announced and applied by this court in City of Joliet v. Verley, 35 Ill. 58, 85 Am. Dec. 342." If, in the case thus referred to, where the elevated sidewalk had no railing, the act of one boy in pushing another from the sidewalk was not the proximate cause of the injury, but the act of the village in failing to put a railing upon the sidewalk was the proxi69 N.E.-2

mate cause of the injury, then, in the case at bar, it can with equal truth be said that the act of trying to extricate the truck from the hole in question by pulling was not the proximate cause of the injury, but the act of the appellant in permitting the floor to become defective by the removal of the broken plate, which caused the existence of the hole, was the proximate cause of the injury.

In view of the observations above made, we are unable to say that the court committed any error in refusing to take the case from the jury, or in refusing to give the two instructions asked by the appellant in relation to fellow servants and variance.

Accordingly the judgment of the Appellate Court is affirmed. Judgment affirmed.

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1. Under 1 Starr & C. Ann. St. 1896, c. 30, par. 31, providing that conveyances take effect only from the filing of the same for record as to creditors and subsequent purchasers without notice, a purchaser of land from the holder of the legal title thereto is protected against an unrecorded declaration of trust executed by the holder of the legal title of which he had no notice.

2. Though, as between a grantor and a grantee, a dry trust is created in favor of the former, a purchaser at an execution sale under judgment against the grantee takes the land free from the trust of which he had no notice.

3. A conveyance by an agricultural society by a warranty deed, for a stated consideration of $1, reciting that the conveyance is made pursuant to a resolution of the directors of the society, does not constitute notice to third persons that the grantee holds the land in trust.

4. The holding of a public meeting in a city, at which a society allotted its lots to purchasers, does not constitute notice to a bank in the city, none of its officers being present, that the purchasers were trustees.

5. Knowledge of a director of a bank that a grantee holds land as trustee is not notice to the bank.

Error to Circuit Court, Peoria County; L. D. Puterbaugh, Judge.

Suit by the Peoria Agricultural & Trotting Society against the Home Savings & State Bank. Decree for plaintiff, and defendants Reversed. bring error.

Dan F. Raum, for plaintiffs in error. W. T. Whiting, for defendant in error.

WILKIN, J. This is a bill in equity filed in the circuit court of Peoria county, in which the defendant in error seeks to have set aside two sheriff's deeds issued to the plaintiff's in

error.

The facts are as follows: The defendant in error was desirous of subdividing a certain tract of land into lots and selling the same to raise money to carry out the object

for which the association was organized. It was the owner of one of the three pieces of land constituting said tract, and by its warranty deed, for a consideration of $1, conveyed the same to one John B. Samuel. The other two pieces of the tract were purchased by the association, and by its directions also conveyed to the said Samuel. The three deeds of conveyance were absolute, without any limitations or conditions whatever appearing upon the face of any of them, and conveyed the fee-simple title to the grantee, John B. Samuel. After these deeds of conveyance had been made, the land was divided into lots, known as the "Fair Ground Subdivision," and on May 15, 1895, the plat of said subdivision was filed for record in the recorder's office of Peoria county, which plat was executed and acknowledged by the said Samuel as proprietor and owner. On the same day he executed his declaration of trust, in writing, to the association, in which he certified that he held the title of record in his name to the lots described in the Fair Ground Subdivision in trust for the Peoria Agricultural & Trotting Association, but this declaration of trust was never filed for record. As to plaintiffs in error it never fook effect, unless the evidence shows that they had actual notice of its existence. 1 Starr & C. Ann. St. 1896, p. 944, c. 30, par. 31; Robbins v. Moore, 129 Ill. 30, 21 N. E. 934. In that case we said (page 43, 129 Ill., page 938, 21 N. E.): "The law is well settled that a bona fide purchaser of the legal estate will be protected against the prior equitable title of another, of which he had no notice. 2 Pomeroy's Eq. 740. This court has frequently announced this rule and applied it." And again, on page 44: "So, a purchaser of land who has no notice that his grantor's deed is but a mortgage will be protected"-citing Jenkins v. Rosenberg, 105 Ill. 157. So, although the grantor in a deed may hold the legal title in trust for another, a third person may acquire the title from the trustee, if he has no notice of the trust and acts in good faith. Emmons v. Moore, 85 Ill. 304; 2 Pomeroy's Eq. 770. See, also, Peck v. Arehart, 95 Ill. 113; McDaid v. Call, 111 Ill. 298; Bradley v. Luce, 99 Ill. 234. It is not claimed that there was any actual possession of the property in question by the defendant in error. As lots were sold, Samuel executed deeds of conveyance to the purchasers, and if all the purchase price was not paid in cash he took mortgages, as trustee, for the deferred payments.

On April 28, 1898, the plaintiffs in error recovered a personal judgment against the said Samuel for $1,066.50, upon which judgment execution was duly issued, and on April 14, 1899, regularly levied by the sheriff of Peoria county upon all the right, title, and interest of the said John B. Samuel in and to the lots in controversy in this case, and by virtue of said levy, on June 7, 1899, all of the right, title, and interest of said John

B. Samuel in and to said lots was sold to the plaintiffs in error herein, and a certificate of purchase issued therefor. On April 28, 1899, one Charles E. Ulrich, one of the officers of the plaintiff in error bank, sued out a writ of attachment against the said Samuel, and levied the same upon all of the right, title, and interest of the said Samuel in and to certain other of the lots in controversy. A judgment was obtained, special execution issued, and all of the right, title, and interest of the said John B. Samuel in and to said lots was sold, and the certificate of purchase afterwards assigned to the plaintiffs in error herein, and, the equity of redemption having expired upon both sales, the sheriff executed to the plaintiffs in error his deeds for said lots, which said deeds specifically stated that they conveyed all the right, title, and interest of the said John B. Samuel. On March 1, 1901, the defendant in error filed this its bill for relief, and upon the hearing the court decreed that at the time of the levy and sales made by said sheriff the said Samuel had no right, title, or interest in said lots in the Fair Ground Subdivision, except as trustee, and that said interest of said Samuel was not subject to levy and sale under said executions, and that the plaintiffs in error acquired no title or interest in said lots by virtue of said sales and said certificates and deeds, and that said sheriff's deeds were clouds upon the title of said defendant in error, and they were accordingly set aside and declared null and void. From this decree a writ of error has been prosecuted to this court.

In support of the decree as entered by the circuit court, the defendant in error claims that under the declaration of trust as made by Samuel, and under the deeds of conveyance to him, a mere dry or naked trust was created, and by reason of such dry trust the legal title to the land never vested in the said Samuel at all, but went instantaneously to the cestui que trust as soon as the use was declared, and for this reason, at the time of the sale by the sheriff, the said Samuel had no right, title, or interest in said lots in question, and that the sheriff's deeds did not give plaintiffs in error any title. We are of the opinion that this claim of defendant in error is not sustained by the law under the evidence in this record. Robbins v. Moore, supra. Conceding that, as between defendant in error and Samuel a dry trust was created, it does not follow that innocent purchasers or judgment creditors without notice are concluded thereby. As to such purchasers or creditors the right, title, and interest of John B. Samuel was the absolute fee-simple title. From time to time, as the lots were sold, he made deeds conveying the fee to the purchasers, receiving mortgages to secure deferred payments. It is not disputed that he was vested with the legal title for the purpose of making these conveyances. If the contention of defendant in error is cor

rect, then there was no title in him at the time of such conveyances, and his deeds conveyed no title whatever to purchasers. If he was vested with sufficient title to make conveyances to the purchasers, he was also vested with the title, to be subject to a sale on a judgment against him, obtained in good faith and without any notice of the alleged trust.

It is contended, however, that plaintiffs in error had notice of such trust, and three reasons are given for such contention: First, because the conveyance from defendant in error to Samuel was by a warranty deed, for a stated consideration of $1, which contained the following recital: "This conveyance is made and executed pursuant to a resolution of the board of directors of the Peoria Agricultural & Trotting Society;" second, for the reason that at a meeting, in the city hall in Peoria, of citizens and contract holders, the lots were allotted to the purchasers, which meeting was so public in its nature as to constitute notice to plaintiffs in error; third, for the reason that one Fred L. Block, who was vice president of the Schipper & Block Dry Goods Company, and at the time a director of the plaintiff in error bank, negotiated with defendant in error for the purchase of a lot, and thereby learned that it owned said lots. We do not think any of these reasons are sufficient to charge plaintiffs in error with notice of the alleged trust, either actual or constructive. The deed in question does not show that the conveyance was less than a conveyance of the fee. Nor do we think that the meeting referred to even tends to prove a trust relation between the parties. There is nothing in the evidence tending to show that any of the officers of the plaintiff in error bank were at the public meeting claimed to have been held in the city hall, or that they had any notice thereof. It can scarcely be contended that every citizen in a city like Peoria is charged with notice, etc. There is no presumption of law that the director, Block, communicated to plaintiffs in error any knowledge he may have had as to the character of Samuel's title, and he was under no legal obligations so to do. 4 Thompson on Corporations, §§ 5204, 5219, 5221.

From a careful examination of all the evidence we are of the opinion that it entirely fails to show notice to plaintiffs in error, either actual or constructive. For over three years defendant in error permitted the feesimple title to appear of record in Samuel. The declaration of trust, as already stated, was never placed upon record, and there is no claim that it was ever brought to the knowledge of plaintiffs in error; nor is there evidence of notice to them, of any kind or character, of the conditions or circumstances under which he (Samuel) held the title to the premises. We are therefore of the opinion that the said Samuel, at the time of the levy and sale under said executions, held

the title of said lots, and that the same were subject to levy and sale, and that by reason of such sales and said deeds the plaintiffs in error acquired title to the lots in controversy, and that for this reason the circuit court had no power or authority to set aside said deeds.

For the reasons above stated the decree of the circuit court will be reversed, and the cause will be remanded for further proceedings in accordance with the opinion herein expressed. Reversed and remanded.

CHICAGO CITY RY. CO. v. MEAD. (Supreme Court of Illinois. Dec. 16, 1903.) PERSONAL INJURIES-MEASURE OF DAMAGES INSTRUCTIONS - HARMLESS ERROR-SUFFIICIENCY OF EVIDENCE-JUDGMENT OF APPELLATE COURT-CONCLUSIVENESS.

1. In an action for personal injuries, an instruction that in estimating plaintiff's damages it was proper to consider the effect of the injury upon the plaintiff, and also the bodily pain and suffering which she sustained, and all damages charged in the declaration, and which, from the evidence, were shown to be the necessary and direct result of the injury, was, in view of evidence that plaintiff had sold out her business after the accident, erroneous, because allowing the jury to consider bodily pain and suffering, and the effect of the injury on plaintiff, in addition to damages charged in the declaration and shown by the evidence.

2. In view, however, of a number of other instructions stating that it was the duty of the jury to decide the case solely from the evidence under the instructions, the error was harmless.

3. On appeal from a judgment of the Appellate Court affirming a judgment on a verdict, it must be presumed that that court found the judgment not to be against the weight of the evidence, though in the opinion it stated that the weight of the evidence seemed to be with the defeated party.

Appeal from Appellate Court, First District.

Action by Anna Mead against the Chicago City Railway Company. From a judgment of the Appellate Court (107 Ill. App. 649) affirming a judgment for plaintiff, defendant appeals. Affirmed.

William J. Hynes and Sears, Meagher & Whitney (Nathaniel C. Sears and Mason B. Starring, of counsel), for appellant. James C. McShane and F. A. Rockhold, for appellee.

CARTWRIGHT, J. Appellee was a passenger on a west-bound Sixty-Third street car belonging to appellant in the evening of June 28, 1900. The car had crossed Cottage Grove avenue, and had stopped at the west side of the street, when an east-bound car collided with it. It was an open car with reversible seats, and appellee, seeing there was about to be a collision, arose in her seat. When the collision occurred she was thrown forward against the back of the seat in front of her, and then back to the seat upon which she had been sitting. She brought this suit in the superior court of Cook county to recover damages for injuries alleged to have been occasioned by the collision. Upon a

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