Clinton Mutual County Fire Ins. Co. v. Zeigler.

plated by the contract, would render the land more valuable for pasture.

The evidence does not support the contention that timber under size was cut by either the heading company or Gill after the modification of the contract on July 27, 1899. True, several witnesses testified that they saw recently cut stumps under fourteen inches, but they did not testify that the stumps were of white or swamp oak, the kinds prohibited under the modified contract. The evidence also shows that other parties had been cutting timber for fence posts about the same time, and that such posts were made of white oak and swamp oak under fourteen inches in size. Although there was much testimony heard by the master upon this point, it was very loose and unsatisfactory and not such as to support a finding that either Gill or the heading company had cut white oak or swamp oak under size after July 27, 1899.

We think the case was properly decided and the decree will be affirmed.

Clinton Mutual County Fire Ins. Co. v. Jacob Zeigler.

1. CONSTRUCTION OF CONTRACTS-Ambiguities in Insurance Policies. -In construing a contract of insurance, declarations of the insured after a loss to the effect that he had been "careless in his application and had not procured insurance on the contents of a building when he thought he had," ought to weigh but little as against a manifest intention to have the property in question insured.

Bill to Construe a Contract of Insurance.-Appeal from the Circuit Court of DeWitt County; the Hon. WILLIAM G. COCHRAN, Judge, presiding. Heard in this court at the November term, 1901. Affirmed., Opinion filed April 9, 1902.

WARNER & LEMON, attorneys for appellant.

GEORGE K. INGHAM, attorney for appellee.

MR. JUSTICE HARKER delivered the opinion of the court.
This is a suit in equity, brought by appellee to reform

VOL. 101.] Clinton Mutual County Fire Ins. Co. v. Zeigler.

an ambiguity in a fire insurance policy and to declare the intent and meaning of the same. It was before this court at the May term, 1899, at which time a decree of the Circuit Court dismissing the bill for want of equity was reversed. (Ziegler v. Clinton Mutual County Fire Ins. Co., 84 Ill. App. 442.) After being remanded, another hearing was had resulting in a decree in favor of appellee. The policy covers two barns and the contents of one barn, but does not state in which barn the contents insured were contained. One of the barns was an old one and the other a new one. The "contents" had been kept in the old barn, but had been removed to the new barn when the policy was issued. They remained there until a fire totally destroyed them and the barn in which they were contained. Appellant adjusted and paid the loss for the barn, but refused to pay for the loss of the "contents," upon the ground that the policy did not cover them. The "contents," consisted of sleigh, saddles, harness, ropes, pulleys, hay and grain, and it is clear that appellee, when he applied for the policy in question, intended to have them insured as contained in the new barn. He entertained no doubt that they had been so insured until after the fire, when some question to the contrary was raised by appellant's officers.

The old barn did not contain the "contents" but was practically empty. It is not reasonable that the parties. intended insurance upon property that had no existence, which would be the effect of a holding that the policy meant the "contents" of the old barn.

Appellant places great stress upon the proof of declarations made by appellee after the fire to the effect that he had been careless in his application and had not procured insurance on the "contents" when he thought he had. He fully explains those declarations. They were based upon the opinion and assurance of appellant's officers that the policy did not cover the "contents" destroyed. Declarations made under the pressure of the "convincing arguments" of appellant's officers ought to weigh but little as against a manifest intention to have the property insured. The decree is right and will be affirmed.

Wabash R. R. Co. v. Prast.

Wabash Railroad Co. v. Minnie Prast, Adm'x, etc.

1. EVIDENCE-Admissibility of Photographs.—In an action for damages resulting from the death of a person by negligence, photographs of the crossing where the accident occurred, shown by the photographer who took them and other witnesses to be a correct view of the place at the time, are properly admissible.

2. SAME-Of the Sobriety of the Deceased.-In an action by the personal representatives of a party killed at a railroad crossing, it is error to exclude evidence that when the deceased was picked up, his breath smelled of liquor, that he had drank beer shortly before the injury and was drinking between eleven and twelve o'clock of the day on which he was injured.

Trespass on the Case.-Death from negligence. Appeal from the Circuit Court of Vermilion County; the Hon. FERDINAND BOOKWALTER, Judge, presiding. Heard in this court at the November term, 1901. Reversed and remanded. Opinion filed April 9, 1902.

C. N. TRAVOUS, attorney for appellant; EVANS & McDowELL, of counsel.

WILSON & KENT and MABIN & CLARK, attorneys for the appellee.

MR. JUSTICE HARKER delivered the opinion of the court. This suit was brought to recover damages for the death of Christopher Prast, a man fifty-five years of age, who was killed by one of appellant's engines while he was attempting to cross appellant's railroad at a street crossing within the corporate limits of the village of Germantown, Illinois. There was a trial by jury, resulting in a verdict and judg ment against appellant for two thousand dollars.

The declaration contains three counts. The first count charges the appellant with negligently running its train without watching and looking so as to avoid injuring deceased. The second count charges the running of a train in excess of the speed limit fixed by the village ordinance of Germantown, thereby injuring deceased. The third count charges that at the time of the injury it was a dark night and that appellant negligently ran its train without

VOL. 101.]

Wabash R. R. Co. v. Prast.

having a good and sufficient headlight burning on the end of the engine first approaching the crossing where deceased was injured.

The evidence shows that while the deceased was returning to his home, about six o'clock in the evening, on the 17th of November, 1900, riding in a buggy drawn by one horse, and while he was attempting to cross appellant's railroad from the south, he was struck by an engine, upon a street crossing, with such violence that his horse was killed, his buggy was demolished, and he was so injured that he soon after died. The evening was dark and it was drizzling rain. The street on which the deceased was driving is fiftytwo feet wide and runs north and south. The appellant's right of way at that point is eighty-five feet wide and runs from the northeast to the southwest. The engine which struck the deceased was coming from the northeast. It was running at a speed variously estimated at from fifteen to twenty-five miles per hour. There is a dispute as to whether there was a headlight on the engine. A preponderance of the evidence shows that there was a headlight and that it was burning.

The chief contention of appellant upon the trial was that the deceased was not at the time of the injury in the exercise of ordinary care for his own safety. We regard it as the controlling question in the case. The evidence shows that when the deceased was picked up his breath smelled of liquor, and that he had drank beer shortly before being injured. It was important that the jury should have received the fullest information and light as to the situation, to enable them to determine truly the question of care on the part of the deceased. Upon the trial, appellant offered in evidence photographs of the crossing, which were shown by the photographer who took them, and several other witnesses, to be a correct view of the place as it was at the time of the accident. These photographs were especially important in view of the statements of some of the witnesses regarding the presence of several trees south of the railroad, which it was thought might offer some obstruction

Brookside Coal Mining Co. v. Dolph.

to the view of one approaching the crossing from the south. The photographs were excluded. It was error to exclude them. L. E. & W. Ry. Co. v. Wilson, 189 Ill. 89.

Testimony was offered showing that the deceased was drinking between eleven and twelve o'clock of the day on which he was injured, but it was excluded by the court. In view of the fact that the evidence showed that he drank afterward, that for a considerable length of time in the afternoon his horse remained standing in front of a saloon, and that the smell of liquor was detected upon his breath when he was hurt, the testimony should have been admitted. If he began drinking in the morning and continued through the day, the testimony was proper as tending to show that his faculties of sight and hearing were, at the time of the injury, less acute than those of a sober and ordinarily prudent man.

We see nothing seriously wrong with the instructions. For the errors of the court in ruling upon the evidence as indicated above, the judgment will be reversed and the cause remanded.

Brookside Coal Mining Co. v. John R. Dolph, by His

Next Friend.

101 169

|p101 174

169

1. CORPORATIONS—Duties, When Engaged in Dangerous Operations. 101 -A corporation engaged in a dangerous business is charged with the 114 2575 duty, not only of furnishing reasonably safe appliances for its employes to use, but also of correcting a habitual abuse or non-use of such appliances, or of discharging the offending employe.

2. COAL MINING COMPANIES-Habitual Violation of Rules by Employes. Where the officers of a mining company charged with the duty of enforcing a rule adopted for the safety of employes know that such rule is habitually violated, and by reason of such violation an employe is injured, the company can not shield itself from liability under the fellow-servant rule.

3. SAME-Liability for a Failure to Comply with the Statute Requir ing Places of Refuge.-For an injury to a person occasioned by the willful failure to comply with the statute (Hurd's R. S. 1901, p. 1216, Sec. 21) in regard to places of refuge in coal mines, a right of action for damages is given to the person injured.