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objection to the introduction of the rule is that it was only intended to be applicable to the appellant's road. The error of admitting this rule in evidence, if any error there was, as to which we announce no decision, was obviated by instructions Nos. 9 and 10 given to the jury at the request of the appellant company. These instructions are, in substance, that the rule had no application to the cause, and was not understood by the officers, agents, and employés of the company to refer to any other trains or tracks than those of the appellant company. Excluding the rule from consideration, the circumstances and the situation authorized the application of the principle or design of the rule to the case. The lines of the two railroad companies were laid in the same public avenue. Their tracks

were so placed in the avenue as to leave but a narrow strip of the avenue, or space, between the tracks. The Chicago & Eastern Illinois Railroad Company and the Grand Trunk road availed of this space at the intersection of Thirty-First street as a place for receiving and discharging passengers to and from their trains, and this was well known to the appellant company. That persons who had alighted from trains in this space would, or at least might, be endangered by the running of appellant's trains at a high rate of speed on its tracks across the street intersection was apparent to the servants of the appellant. The avenue retained its character as a public highway. The appellant company, though authorized to lay its tracks on the avenue and propel its trains on such tracks, had actual knowledge that the avenue was also occupied by the tracks of other railway companies, and that such other companies were using a portion of the avenue as a place for receiving and discharging passengers, and such knowledge charged it with the duty of operating its trains with due regard for the safety of those who, by reason of being passengers on the trains of the other companies, were brought into such proximity to its tracks as to make the moving of its trains on its tracks dangerous to such persons. Speaking of the duty imposed by law upon railway companies in like state of case, it is well remarked in 2 Thomp. Neg. § 1726: “At such places the railway company is bound to anticipate the presence of persons on its track, and to keep a reasonable lookout for them, to give signals, and to mod

erate the rate of speed of its trains, so as to enable them to escape injury." In Railroad Co. v. Kelly, 182 Ill. 267, 54 N. E. 979, it was said in the opinion of the appellate court, which was there adopted as the opinion of this court (page 269, 182 I., and page 980, 54 N. E.): "The running of a freight train at a high rate of speed past a station where a passenger train is receiving and discharging passengers is so plainly negligent as not to require comment. It is equally negligent to so run a freight train just as the passenger train is pulling into the station, and more

especially when the track upon which the freight train is moving is between the depot and the track on which the passenger train is moving." The principle thus announced is applicable, we think, to the case in hand. It is clear, in view of this, and also in view of the instructions given by the court, before referred to, that the judgment should not be reversed because of admission in evidence of rule No. 114.

There was no error of reversible character in the giving or refusing of instructions. There is no force in the objection that instruction A given in behalf of appellee assumes that the appellant company was guilty of negligence. The instruction, in the first paragraph thereof, does no more than to state, as by way of explanation of the issues, that it is alleged in the declaration, as a ground of a right to recover damages, that the defendant was negligent, etc. The design of the second clause or paragraph of the instruction is to advise the jury as to the elements necessary to be established by the testimony to warrant a recovery, the third of which is that it shall be shown by a preponderance of the evidence that the plaintiff was injured as the direct and proximate result of the negligence of the appellant company. There is in no part of the instruction any assumption of fact that would invade the province of the jury to determine from the proofs whether the company was guilty of negligence.

The other complaint against this instruction, and also against instruction B given in the same behalf, that the duty of the appellee to use due care may have been understood by the jury to be limited to the immediate time and place of the injury, is groundless. There is nothing in the phraseology or structure of the instructions to indicate that the law required no more of the appellee than that he should have used due care to avoid injury after reaching the point of immediate peril. That, if his negligence or want of ordinary care brought about his perilous situation, he could not recover, could not have been misunderstood by the jury.

Instruction No. 15, refused, was but a repetition of instruction No. 2, which was given.

Instruction No. 6, given at the request of the appellant company, contained all asked to be given by instruction No. 16, which was refused.

Instruction No. 17, refused, erroneously asked the court to direct the jury to return a verdict for appellant, if they should find a fact which was merely evidentiary, and not ultimate, to have been established by the evidence. The court, in instruction No. 13 given at the request of appellant, advised them that the fact referred to in instruction No. 17, if proven, would authorize a verdict for the appellant. Neither of the instructions should have been given. The appellant profited by the error of the court in giving one of them, and cannot be heard to complain that the court refused to reiterate it.

It was not error to refuse to give instruction No. 18 asked by appellant. It was as follows: "If the jury believe, from the evidence, that at and before the time of the injury in question it was customary for suburban passenger trains to avoid stopping at a station to load or unload passengers at a time when a through passenger train was about to pass such station, then Engineer King, of defendant's said train, had a right to believe that the Eastern Illinois train in question would be governed by such custom until he had notice to the contrary." The engineer admitted, when testifying as a witness, that before his train arrived at Thirty-First street he knew the train of the Chicago & Eastern Illinois Railroad Company had stopped at the street intersection, and saw passengers alighting from the train of that company in the space between the tracks. The instruction entirely ignores this testimony.

There was no objection made, at the time, to remarks of counsel for appellee in his closing address to the jury. No complaint based upon alleged improprieties in that address can now be urged. We have, however, in view of the frequency of complaints of this character, examined the record with reference to this objection, and find it to be wholly untenable. The judgment must be, and is, affirmed. Judgment affirmed.

(198 11. 28)

BAKER et al. v. McCLURG et al.1 (Supreme Court of Illinois. June 19, 1902.) LANDLORD AND TENANT-TRADE FIXTURESBAKERY OVENS AND MACHINERY-RIGHT OF REMOVAL-IDENTITY OF DESIGN OF BUILDING AND FIXTURES-INJURY TO FREEHOLD -INJURY TO FIXTURES-RENEWAL OF LEASE -EFFECT.

1. Pursuant to an agreement, lessors erected on the leased premises a house to be used by lessees for the term of the lease as a bakery; the plans of the house being first submitted to and approved by lessees. Lessees erected ovens, engines, a boiler, and other machinery in the house; one of the ovens extending from the basement nearly to the roof, through openings left in the several floors and basement for that purpose. All the ovens were erected on lessee's own brick foundations, unattached to the walls of the building; and the boiler was inclosed in a brick masonry jacket, unattached to the walls of the boiler room. Except for the openings left in the floors and basement, the house was equally adapted for any of the ordinary uses of buildings of its character as for a bakery. Held, that there was no such identity in the ultimate design of the house and that of the ovens, boiler, etc., as would prevent lessees from removing the latter as trade fixtures.

2. The evidence did not sufficiently show that the freehold would suffer such injury from the removal of the ovens, boiler, etc., as would prevent the lessees from removing them.

3. It appearing that the intention of the parties was that the fixtures should be removable, that they were removable without injury to the freehold, and that lessees could profitably remove and re-erect them, the fact that they would have to be taken down piece by piece, and would be more or less injured by such removal, was immaterial.

1 Rehearing denied October 8, 1902.

1. See Fixtures, vol. 23, Cent. Dig. §§ 23, 28, 29.

4. The owner of premises leased to a bakery firm agreed to release a retiring member thereof, and surrendered to him a copy of the lease, indorsed "Canceled," but retained the other copy uncanceled. The landlord then took a lease from the remaining partner alone for the unexpired portion of the term, which was identical with the old lease, except that the lessee was given the right of assignment. Held not such a new leasing of the premises as would prevent the remaining tenant from removing trade fixtures previously erected on the premises by the firm.

Appeal from appellate court, First district. Suit by Digory W. Baker and others against Aaron H. McClurg and others. From a judgment affirming a judgment in favor of defendants (96 Ill. App. 165), plaintiffs appeal. Affirmed.

The following statement of the case was made and opinion rendered by the branch appellate court for the First district:

Statement.

"Appellants are owners of premises on Green street, Chicago, upon which, pursuant to an agreement in writing made in October, 1890, they erected a two-story and basement brick building, and by a written instrument dated January 15, 1891, leased the same to appellee McClurg and one George C. Aldrich, at that time composing the firm of McClurg & Aldrich. The building was erected and was rented to be used for a bakery. Upon taking possession under their lease, said McClurg & Aldrich proceeded to erect three ovens in the building, and also placed therein an engine, boiler, shafting, pulleys, wheels, etc. The principal oven, called a 'reel oven,' extended from foundations laid in the earth below the basement floor, through the first and second stories, nearly to the roof of the building. Square openings had been left in the several floors, including the cement floor of basement, when the building was erected, pursuant to the plans and specifications agreed upon between the parties, in order to enable said oven to be so built. This oven was built by the tenants upon foundations of its own, contiguous, but not attached, to the north wall of the building. These foundations were laid (necessarily, because of the projection of certain of the footings of the building's foundations within the space to be used for the purpose) partly upon said footings; the rest of the oven's foundations being laid upon or within the earth. Upon said foundations an arch was erected, on which the oven stands. The other two ovens erected by the tenants, known, respectively, as the 'Fish Oven' and the 'Peterson Oven,' rest likewise upon separate brick foundations, in part resting also upon the footings of the building wall, but do not extend quite to the basement ceiling. The boiler is inclosed in a brick masonry jacket, separate from the brick wall of the boiler room in which it stands; said room being outside of, and connected with, the main building.

"The lease to McClurg & Aldrich provided for a term of ten years,-from January 15, 1891, until January 14, 1901. A new lease was, however, made for the balance of the same term by mutual agreement, December 2, 1891, owing to the withdrawal of Aldrich from said firm, and his desire to be released from liability. It was executed by and between appellants and appellee McClurg alone. Except that the lessee is McClurg alone, the second lease is in substance and effect practically identical with the original. It contains, however, one additional provision, viz., a consent of the lessors to its assignment to the McClurg Cracker Company. The business of McClurg and the McClurg Cracker Company, together with the leasehold interest, has since been transferred to the National Biscuit Company, but no formal assignment of the lease was made by McClurg.

"Just before the expiration of the end of the term the appellees were commencing to remove the ovens and fixtures, when appellants filed a bill to restrain such removal, and obtained an interlocutory injunction. Upon hearing, that injunction was dissolved, and the bill dismissed. From this decree the present appeal is taken."

Opinion.

"The question to be determined is whether the appellees are entitled to remove the ovens, engine, and other fixtures erected by them upon the leased premises, and claimed as trade fixtures.

"It is contended in behalf of appellants: First, that the building upon the premises leased to McClurg & Aldrich January 15, 1891, was erected and designed as a bakery, and that the ovens were erected by the tenants in pursuance of the same purpose and design, and became, therefore, a part thereof; second, that the removal of the ovens would result in material injury to the prem ises; third, that such removal would destroy their identity as ovens, and their character as fixtures. And it is urged the law is that fixtures are not removable where they are placed in a building to carry out the design and purpose for which the building to which they are attached was erected, or to permanently increase its value for occupation, nor where their removal would injure the freehold, or destroy their identity as fixtures. In the second place, it is contended that, when the original lease to McClurg & Aldrich was canceled, appellee McClurg took a new lease of the same premises, without reserving therein any right to remove the fixtures in controversy, and that he thereby lost the right to remove them, even if such right had before existed.

"The facts in the case are mainly settled by stipulation. There are, however, according to appellants' counsel, two controverted questions of fact, viz., whether the ovens were erected to carry out the purposes for which

the building itself was designed, and what, If any, injury would result to the premises from their removal. But the alleged controversy is, rather, what conclusions are to be drawn from conceded facts, than as to the facts themselves. It is stipulated the building was erected in accordance with plans prepared and submitted to the lessees, McClurg & Aldrich, and by them approved as suitable for the uses to which they were intending to put it. They intended to, and did, use it as a bakery, and with that intention and for that purpose erected the ovens in question. So far, therefore, as the building was planned for the purpose for which the tenants intended to use it, both building and ovens were constructed with the same immediate end in view. But it does not necessarily follow from that fact that the ovens and trade fixtures became thereby a permanent part of the building, or so entered into and influenced its character and construction that without them the ultimate design and purpose of the building would be frustrated. It is doubtless true that they were put in for the same purpose for which the building itself was intended during the term of the lease, but that fact is not enough to justify the conclusion that the building was designed and intended for a bakery, and nothing else, after the expiration of the term, and that it is unsuited to other uses. The evidence does not so indicate. The only material difference of construction distinguishing it from other buildings designed for any business requiring the use of machinery appears to be that openings were left in the floors for the erection by the tenants of the 'reel oven.' With these closed, we find in the evidence no reason to suppose that the building was not designed and is not adapted for any of the ordinary uses of buildings of its general character as well as for a bakery. If so, the bakery fixtures are not irremovable because of the purpose for which the building was erected. Neither did they enter into its ultimate design and purpose to any greater extent than ordinary trade fixtures put in by a tenant, and suited to his special business. Nor

is it apparent that the building itself will be injured by their removal. It is true, the removal of the reel oven would leave the original openings in the two floors, as well as in the cement floor of the basement. But these were left when the building was erected, and if they should be filled in by the tenants to correspond with the rest of the building, as may be the latter's duty in equitable compliance with their covenants, it is difficult to see wherein the freehold would be injured. is also true, doubtless, that the brick structure of the ovens, when removed, would have to be taken down brick by brick; but this need not be injurious to the building or premises if the work should be properly done. We conclude, therefore, that the facts do not justify the conclusion that the ovens became necessarily a part of the building by reason of the purposes for which both building and ovens

It

were constructed, nor that the removal of the fixtures would necessarily injure the freehold. "But it is said that fixtures are not removable if by removing them their identity and character as fixtures are destroyed. That taking down the ovens brick by brick, and removing the iron of the structure piece by piece, would change the form of the original structures for the time being, is made clear by the evidence, and is obvious. It could never again be precisely the same structure of brick and mortar as before, but the iron work would doubtless retain its identity, even though taken down in pieces and subsequently re-erected; and there is evidence tending to show that the ovens can be profitably removed and re-erected by the tenant.

"The ovens in question were, when erected by the lessees, as the evidence tends to show, intended for trade fixtures. This intention is clearly indicated by the conduct of the tenants. The ovens were not attached to, nor made a part of the structure of, the building. They were built within it, but not of it. They were not joined to its walls nor to its foundations. These facts of construction certainly tend to sustain the contention of appellees that it was the intention at the time they were put up to have them removable. There is other evidence of such intention and understanding afforded by the bills of sale transferring the machinery, fixtures, ovens, etc., from Aldrich to McClurg, from McClurg to the cracker company, and from the latter to the biscuit company. That this was also the view of the landlords is, we think, apparent from the conduct of the latter. One of the appellants testifies to having visited the premises shortly before the expiration of the term of the leases, looking the fixtures all over, including the engine, boiler, shaftings, and steam-heating plant, and asking appellee McClurg 'to put a price on it, and also to include the ovens.' He states that McClurg told him he would not include the ovens, and that afterward he (appellant) 'again asked him to throw in the ovens. We would buy the whole thing.' Whatever may be the effect of this testimony in other respects, it does tend to show an understanding on the part of both parties at that time that the fixtures were the property of appellees, and removable. There is no evidence of any other intention or understanding during the whole of the ten-year term.

"There is some conflict of authorities as to whether fixtures are removable when by removal they are liable to suffer substantial injury. In Collamore v. Gillis, 149 Mass. 578, 22 N. E. 46, 5 L. R. A. 150, 14 Am. St. Rep. 460, it is said that, 'in determining whether an addition by the tenant to a leased building is removable or not by him during his term, the chief thing to be considered is the mode of its annexation, and whether it can be removed without substantial injury to the building or to itself. The intention with which it was put there, though often an element to be considered, is of secondary im

portance. We are not inclined to extend the right of removal so far as to include a thing which cannot be severed from the realty without being destroyed or reduced to a mere mass of crude materials.' But in Hopewell Mills v. Taunton Sav. Bank, 150 Mass. 519, 23 N. E. 327, 6 L. R. A. 249, 15 Am. St. Rep. 235, it is said: "The tendency of the modern cases is to make this a question of what the intention was with which the machine was put in place.' The rule in Illinois is liberal in favor of the tenant. As between him and the landlord, removable trade fixtures may include all erections made for the purposes of trade during tenancy 'which he may have attached to the freehold while in possession, such as soap vats, engines, a working colliery, pans used in manufacturing salt, brew houses, furnaces, green houses and hot houses erected by nurserymen and gardeners.' Moore v. Smith, 24 Ill. 513. Ordinarily such things cannot be removed without injury to the material composing them. No reason is perceived why, in the nature of things, an exception should be made in the case of ovens, engine, boiler, and other fixtures, such as those here in controversy. It has been held that a two-story house, with brick chimney and foundations, was so removable. Van Ness v. Pacard, 2 Pet. 137, 7 L. Ed. 374. In Wiggins Ferry Co. v. Ohio & M. R. Co., 142 U. S. 396, 12 Sup. Ct. 188, 35 L. Ed. 1055, it is said: 'Indeed, it is difficult to conceive that any fixture, however solid, permanent, and closely attached to the realty, placed there for the mere purposes of trade, may not be removed at the end of the term.' In the case of Moore v. Wood, 12 Abb. Prac. 393, it was held that a brick chimney extending through the roof, and with its foundations three feet in the earth, erected for trade or manufacturing purposes by the tenant, might be removed. The court says: 'It was not movable without taking it down, and was in every respect a ponderous structure. Nevertheless, under the circumstances of the present case, it was not a fixture. The rigor of the ancient law of fixtures has yielded, and must continue to yield, to the contingencies of modern times. The law must take notice of trade and manufactures and their wants, and afford to them adequate and appropriate protection.'

"It is contended by appellees that the intention with which the fixtures were put in place, as shown by the evidence in the case before us, is the chief test as to whether they are removable by the tenant before the expiration of his lease. This is conceded by appellants to be the rule if such fixtures may be removed without injury to the freehold or themselves; but, as we have said, the evidence fails to sustain appellants' claim that their removal would in this case necessarily injure the freehold, and authorities above referred to are to the effect that the fact that its removal requires the taking to pieces of

a fixture, such as a brick chimney or a brick oven, is not conclusive against the tenant's right. Upon principle, it would seem that the mere fact that its removal may cause some injury to the fixture itself, though not injuring the freehold, ought not to destroy the right. The landlord is not affected by an injury done by the tenant to the latter's own property. It may still be valuable to the tenant, even though he be put to extra expense to repair or rebuild; and if, when the trade fixture was erected, the tenant, by his conduct, manifested the intention to retain ownership and remove it at the end of the lease, it appears that such intention should control, even if such removal necessitates a reconstruction of the fixture. Ewell, Fixt. p.

96.

"Identity is not necessarily lost by demolition. It is said in Hopewell Mills v. Taunton Sav. Bank, 150 Mass. 522, 23 N. E. 330, 6 L. R. A. 249, 15 Am. St. Rep. 235, before referred to: 'The intention to be sought is not the undisclosed purpose of the actor, but the intention implied and manifested by his act.' In this state the intention so manifested is regarded as the principal test to determine the right of removal. In Sword v. Low, 122 Ill. 487, 13 N. E. 826, it is said: "To determine the irremovable character of a fixture, three tests are by the modern authorities applied, viz.: First, actual annexation to the realty or something appurtenant thereto; second, application to the use or purpose to which that part of the realty with which it is connected is appropriated; and, third, the intention of the parties making the annexation to make a permanent accession to the freehold.' Here no such intention appears, but the contrary. It is further said in that case: 'It is apparent from the authorities that, however permanently attached, if removable without material injury, the intention, to be inferred from the circumstances, and the relation of the parties to each other and to the realty, or as shown by the evidence, will be of controlling and decisive importance.' To the same effect are Fifield v. Bank, 148 Ill. 163, 35 N. E. 802, 39 Am. St. Rep. 166; Hewitt v. Electric Co., 164 Ill. 420, 45 N. E. 725; Kelly v. Austin, 46 Ill. 156, 92 Am. Dec. 243.

"In the present case the fixtures in controversy, being so removable, and having been erected with that intention, were subject to be taken away by the tenant, unless, as is contended by appellants, the right to removal was lost by acceptance, after the erection of the fixtures of a new lease, which contains no express reservation of the right to remove. In Sanitary Dist. v. Cook, 169 Ill. 184, 48 N. E. 461, 39 L. R. A. 369, 61 Am. St. Rep. 161, it is said: 'But the great weight of authority seems to be that where at the expiration of a lease, during which trade fixtures had been erected on the premises by the tenant, a new lease is taken of the same premises, containing no reservation of any right or claim of the tenant to the fixtures still remaining on

the premises, and without recognizing the right to remove them, such fixtures erected under the former lease cannot be removed by the tenant during or at the end of the new lease, notwithstanding his actual possession of the premises has been continuous.' And it is further said: "The reason given is because the fixtures set up on the premises at the time of the lease are part of the thing demised, and the tenant, by accepting a lease of the kind without reserving his right to the fixtures, has acknowledged the right of his landlord to them, which he is afterward estopped from denying.'

"Applying the foregoing rule to the case at bar, the only question we deem it necessary to consider is whether, in fact or law, the alleged cancellation and surrender of the original lease to McClurg & Aldrich, and the execution of a new instrument to McClurg alone, constituted a new lease of the premises, including the fixtures in dispute. It will be noted that this transaction occurred, not at the expiration of the original lease, but during its term, which continued to run on as before. All that was in reality done was just what was intended to be done, viz., to release Aldich from liability as a lessee thereunder, in accordance with his wish to be relieved because of his retirement from the firm. It appears that upon one copy of the original instrument the appellants wrote the words: 'Canceled December 2, 1891. D. W. & H. Baker,'-and handed said copy to Aldrich, the retiring partner and lessee, but retained in their possession the other copy or duplicate, which was uncanceled and unsurrendered. It is true that a new lease was made out and executed by McClurg alone, but it was for the balance, only, of the same term, at the same rental, payable in monthly installments of the same amount, at the same place, to the same parties. It was but a reiteration of the former lease. It contained in addition thereto a permission for assignment by McClurg to a corporation,-the McClurg Cracker Company,-which he seems to have been intending to organize, or had organized, to take in the business; but this certainly did not make it a new lease. It is evident that there was in this transaction no intention to create any new or different liability on the part of McClurg, the lessee. The purpose, as shown by what was done, was to release Aldrich; and what was done was, in legal effect, no more than if an indorsement had been made on the original instrument to the same effect. We are compelled to the conclusion that the parties did not intend to, and did not in fact, make any new or additional demise or create any new obligation for the tenant, and that the lessee, McClurg, did not intend to, and did not in fact, accept any new obligation,-in other words, that the transaction did not amount to a new leasing of the. demised premises, and had no effect whatever upon the ownership of the trade fixtures in controversy, and the right to their removal.

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