(145 N.E.) liered, the charges in the declaration, in-, had a lawful right to advise him, if they did cluding the assaults on the plaintiff by de so honestly and in good faith, with respect to fendants, were sustained. If the testimony domestic affairs, for the purpose of aiding in on behalf of defendants is believed, the con- the general welfare of their son. The court trary might be true. It is certain this court further instructed the jury, on behalf of decould not reverse the judgment because it is fendants, that it was incumbent on plaintiff contrary to the preponderance of the evi. to prove by a preponderance of the evidence dence.

that the conduct of defendants did alienate [4] Defendants assign as error the action her husband's affections, and that their conof the court in giving plaintiff's second and duct was intended by them to have that rethird instructions. The second instruction sult. The court further instructed the jury, told the jury, if they found from a prepon- for defendants, that, in a suit against parderance of the evidence that the affections of ents for alienation of their son's affections plaintiff's husband for her were destroyed, and from his wife, it must be shown by a prethat the acts and conduct of defendants were ponderance of the evidence that the parents the controlling cause, and without such con- acted in bad faith, and for the purpose of alduct his affections would not have been alien- ienating their son's affections from his wife, ated, then plaintiff was entitled to recover, and unless so shown by a preponderance of although there might have been ther causes the evidence, it must be presumed the parcontributing to the same result. The third ents acted in good faith for the best interinstruction told the jury that it was not es-ests and happiness of their son. sential to plaintiff's right of action against [5] The court gave 17 instructions for dedefendants that their conduct was the sole fendants, covering very fully all the rights cause of the alienation of her husband's af- and defenses of defendants, and repeating fections, but if the jury believed from a pre- the substance of the rules of law announced ponderance of the evidence that plaintiff's in many of them. The mere omission to state husband's affections were alienated, and that in plaintiff's second and third instructions the acts and conduct of defendants were the the difference the law recognizes in alienacontrolling cause of the alienation, plaintiff tion suits against parents and strangers would have a right of action.

could not have prejudiced defendants. The The objection made to these instructions is: action was against parents, and the instrucIt is claimed that they would authorize a re- tions told the jury it was incumbent on covery by plaintiff, even though the defend-plaintiff to prove by a preponderance of the ants, as parents of plaintiff's husband, had evidence that the acts and conduct of the the right, when acting in good faith and with defendants were the controlling and proxi. proper motives, to give their son counsel and mate cause of alienating her husband's afadvice. It is the law that a parent may, if fections. If, in the absence of any instruche acts without malice and unworthy mo- tion upon the difference in the rights of partives, advise his child about domestic affairs ents and strangers, the jury might have been without incurring liability for alienation. All misled—which we do not think would have four counts of the declaration charged defend- been the case in view of the very full, reants with malicious, wanton, and willful con- peated, and explicit instructions for defendduct in assaulting the plaintiff, and in alien- ants, it was not possible for the jury to be ating her husband's affections, and the court misled. There were no contradictory in. instructed the jury, at the request of defend-structions. ants, that it was incumbent upon plaintiff to Plaintiff's first instruction was on the subprove by a preponderance of the evidence ject of damages, and some complaint is that she had lost the affections of her hus- made of the court's action in giving it. The band, and that the loss of her husband's af- instruction was not erroneous, in view of the fections was directly attributable to the will-evidence, and the court did not err in givful, malicious, and unjust conduct of defending it. ants, and was not the result of some other There are no errors of law or any other cause or circumstance. The court also, at questions raised, which this court has a the request of defendants, instructed the jury right to consider, that would justify a rethat on the subject of alienation the rights versal of the judgment, and it is affirmed. of parents were different from the rights of Judgment affirmed. strangers; that defendants had a right to treat plaintiff's husband as a son; that they HEARD, J., took no part in this decision.

(315 Ill. 131)

(315 Ill. 129)

[1, 2] The road and bridge tax of each of PEOPLE ex rel. SHROUT, County Collector, the towns of 'Pana and Rosemond was in ex. V. CLEVELAND, C., C. & ST. L. RY. CO. cess of 50 cents on each $100 valuation of (No. 16339.)

the taxable property in the town. The writ(Supreme Court of Illinois. Dec. 16, 1924.) ten consent to the excess, required by sec

tion 56 of the act in relation to roads and 1. Counties en 192—Tax for tuberculosis san- bridges, was obtained from the board of itarium fund may be levied in gross.

auditors of each of these towns on SeptemCounty tax for tuberculosis sanitarium ber 4, 1923, which was the first Tuesday fund may be levied in gross, and sums for construction or purchase and for maintenance need of the month, before the tax was certified.

Appellant's contention with reference to the not be separately stated.

road and bridge taxes is that, since the 2. Highways em 127 (3)—Consent of board of amendment of section 3 of article 13 of the

town auditors to excess road and bridge tax Township Organization Act (Laws 1923, p. may be given on first Tuesday in September. 628), which permits meetings of the board of

Under Township Organization Act, art. 13, $ 3, as amended by Laws 1923, p. 628, consent auditors of a town to be held upon request of board of town auditors to road and bridge of the supervisor or of any two members of tax in excess of 50 cents per $100 valuation, as the board, the written consents should have required by Road and Bridge Act, $ 56, may be been secured prior to the first Tuesday in given on first Tuesday in September.

September, and that, not having been so obAppeal from Christian County Court; c. tained, the road and bridge taxes in question

are void. This court has held adversely to J. Vogelsang, Judge.

both of appellant's contentions in People v. Action by the People, on the relation of Wabash Railway Co. (No. 16338) 145 N. E. Alva Shrout, County Collector, against the 724.

That authority is decisive of the inCleveland, Cincinnati, Chicago & St. Louis stant case. The objections were properly Railway Company. Judgment for plaintiff, overruled. and defendant appeals. Affirmed.

The judgment of the county court will be Hogan & Reese, of Taylorville, for appel- affirmed. lant.

Judgment affirmed. Edward E. Dowell, State's Atty., of Pana, for appellee.

DE YOUNG, J. The county collector of PHILLABAUM v. LAKE ERIE & W. R. CO. Christian county made application to the

(No. 16086.) county court of that county for judgment (Supreme Court of Illinois. Dec. 16, 1924.) against real estate upon which the taxes for the year 1923 were delinquent. The Cleve 1. Appeal and error

1094 (5) Supreme land, Cincinnati, Chicago & St. Louis Rail

Court's inquiry, where case tried by jury and

reversed by Appellate Court on facts without way Company filed objections to the tuber

remanding, stated. culosis sanitarium tax and to the road and

In negligence case tried by jury, which bridge taxes of the towns of Pana and Rose- Appellate Court reversed on facts without remond. The objections were overruled, and manding the cause, Supreme Court's inquiry judgment was rendered against the property was limited to ascertaining whether there was of the railway company for $628.72. It pros- in record any evidence supporting charge of ecutes this appeal to review the county court's plaintiff, or whether defense of contributory judgment.

negligence was so conclusively established that The board of supervisors of Christian coun- defendant was entitled to judgment as a mat

ter of law, ty, at its meeting in September, 1923, adopted a resolution that $30,000 be appropriated for 2. Appeal and error 1175(5)-Appellate the purpose of constructing or purchasing

Court cannot weigh evidence in law case tried and maintaining a tuberculosis sanitarium, as

by jury, where evidence conflicting. authorized by the people of the county, and

Where a law case is tried by jury, and evithat the sum mentioned be raised by levying

dence is conflicting, Appellate Court cannot a tax upon all the taxable property in the weigh and determine on wbich side preponder

ance lies, and enter an original judgment on its county. Pursuant to this resolution the coun- consideration of the evidence contrary to jury's ty clerk extended a rate of 12 cents as a sep-verdict. arate item to raise the tax. The contention of appellant is that the tax was levied for 3. Master and servant 286(13)-Whether two distinct purposes: First, to construct or

couplers crushing switchman's foot were de

fective held for jury. purchase, and, secondly, to maintain, the sanitarium; that the sum required for each foot crushed in coupling operation, whether

In switchman's action for injuries to his purpose should have been stated separately; couplers were defective in violation of Fedand that the tax having been levied in gross eral Safety Appliance Act (U. S. Comp. St. is void.

$8 8605-8623) held for jury.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(145 N.E.) 4. Appeal and error enw 994(1), 995–Supremo , 12. Master and servant mw 129(6)-Defective

Court does not weigh evidence nor determine couplers held proximate cause of injury to credibility of witnesses.

switchman. It is not the province of Supreme Court Where switchman undertook to adjust to weigh evidence nor determine credibility of couplers so they would couple by impact by witnesses.

closing coupler on car he had been directed to 5. Master and servant Om289 (35)-Whether tween cars to use lever to open the other cou

remove from main track, and was climbing berules were in effect and violation thereof con- pler when cars were moved toward standing car, tributed to switchman's injury held for Jury. and his foot was crushed, failure of railroad

In railroad switchman's action for inju- to equip its cars with couplers that would ries to foot crushed in coupling operation, couple by impact was proximate cause of whether rules he was claimed to have violated switchman's injury and movement of string of were in effect at time of injury or had been cars was not an intervening efficient cause. abrogated by nonobservance, or whether violation thereof contributed to injury, held for jury.

Error to Appellate Court, Second District, 6. Master and servant om 289(33)-Contribu- on Appeal from Circuit Court, Peoria Coun

tory negligence of switchman coupling cars ty; Charles V. Miles, Judge.
held for jury.
In railroad switchman's action for inju-

Action by Henry O. Phillabaum against ries to foot crushed in coupling operation, the Lake Erie & Western Railroad Company. whether he was guilty of contributory negli- Judgment for plaintiff was reversed by the gence held for jury.

Appellate Court, and plaintiff brings certiora

ri. Reversed and remanded. 7. Negligence m 136(25)-Proximate cause of injury question for jury.

Henry R. Rathbone, of Chicago, and What is the proximate cause of an injury Clarence W. Heyl, of Peoria (Heyl & Heyl, is ordinarily a question of fact to be deter- of Peoria, of counsel), for plaintiff in error. mined by jury from consideration of all at John B. Cockrum and J. G. McKay, both tending circumstances.

of Indianapolis, Ind., and Miller, Elliott &

Westervelt, of oria, for defendant in er8. Negligence im 136(9)–Proximate cause of

ror. injury question of law only when but one inference can be drawn from facts. Proximate cause of an injury can arise as a

THOMPSON, J. This is an action for damquestion of law only when facts are undisputed, ages based on a violation of the Federal and are such that there can be no difference in Safety Appliance Act (U. S. Comp. St. 88 judgment of reasonable men as to inferences to 8605-8623), which makes it unlawful for any be drawn from them.

railroad engaged in interstate commerce to 9. Master and servant om 129(6)-Proximate

use a car not equipped with couples coupling cause of injury from defective couplers.

automatically by impact. The Lake Erie & If injury to switchman was directly attrib- Western Railroad Company, defendant in utable to railroad's failure to equip its car

error, is a common carrier engaged in interwith proper couplers, and no new force of it- state commerce, and at the time of the inself sufficient to stand as cause of injury inter- jury in question Henry Phillabaum, plainvened, railroad's negligence would be proxi- tiff in error, was employed by defendant in mate cause of injury, if it could have been fore

error in a switching movement. There was a seen by exercise of ordinary care that injury verdict and judgment in favor of plaintiff might or would result from such negligence.

in error in the circuit court in Peoria county. 10. Negligence Cum 62(1) "Intervening effi. On appeal the Appellate Court for the Sec. cient cause" defined.

ond District reversed this judgment, and inAn "intervening efficient cause" is a new corporated in its judgment a finding of fact and independent force which breaks causal to the effect that the injury was not caused connection between original wrong and injury, by the use of a defective coupler but by the and itself becomes direct and immediate cause contributory negligence of plaintiff in error. of injury.

This court has granted a writ of certiorari [Ed. Note.-For other definitions, see Words to review the judgment of the Appellate and Phrases, Second

Series, Intervening Court. Cause.)

[1, 2] This being a case tried by jury, and II. Negligence im62(1)-Furnishing of occa- the Appellate Court having reversed the judgsion for intervening cause within control of ment on the facts without remanding the party responsible for initial act of negligence. cause, the inquiry here is limited to ascer

Where party responsible for initial act taining whether there is in the record any knows or should know that, if occasion is given, evidence supporting the charge of plaintiff an intervening cause will be likely to 'exert in error, or whether the defense is so conitself, furnishing of such an occasion may be in itself an act of negligence, causing such clusively established that defendant in error party to be liable for result flowing as effect is entitled to judgment as a matter of law. of such intervening cause, where it is within Where a law case is tried by a jury, and the control of party responsible for initial act. evidence is conflicting, the Appellate Court

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

does not have the power to weigh and deter-, is not the province of this court to weigb mine on which side the preponderance of the this evidence nor to determine the credibility evidence lies and enter an original judgment of witnesses. It is clear from the record on its consideration of the evidence con- that there is substantial evidence showing trary to the verdict of the jury. Mirich v. that the couplers were defective, and, this Forschner Contracting Co., 312 Ill. 343, 143 being true, neither this court nor any other N. E. 846.

court has the power to deprive plaintiff in Defendant in error contends that the judg- error of his right to a trial of the facts by ment of the Appellate Court should be af- a jury. Whether the rules which it is firmed for the reasons: (1) That there is claimed plaintiff in error violated were in no evidence in the record showing negligence effect at the time of the injury or had been on its part; (2) that the failure of plain- abrogated by nonobservance, or whether the tiff in error to observe certain safety rules violation of the rules contributed to the inknown to him was the cause of his injury; jury, were questions of fact for the jury. and (3) that the movement of the train while Preble v. Wabash Railroad Co., 243 Ill. 310, plaintiff in error was in a place of danger 90 N. E. 716; Hampton v. Chicago & Alton was a cause of the injury, wholly independ- Railroad Co., 236 III. 249, 86 N. E. 243. He ent of the condition of the couplers.

was certainly not guilty of such contributory It is unnecessary to a decision of this case negligence as would justify a holding that his to set out the evidence in detail. Plaintiff in right to recover was barred as a matter of error, in obedience to orders of his superior, law. Chicago, Rock Island & Pacific Railwas at the time of his injury engaged in re way Co. v. Brown, 229 U. S. 317, 33 S. Ct. moving a freight car from the main track of 840, 57 L. Ed. 1204; Popplar v. Minneapolis, defendant in error. The track runs north St. Paul & Sault Ste. Marie Railway Co., 121 and south, and the engine engaged in the Minn, 413, 141 N. W. 798, Ann. Cas. 1914D, switching operation was on the north end of 383. a string of three freight cars. As the string [7,8] The important question in the ca se moved south to pick up the car to be moved is whether the movement of the train was plaintiff in error rode on the southeast corner an intervening independent act which was of the car at the south end of the string. the proximate cause of the injury. What is The coupler on the car on which he was the proximate cause of an injury is ordinaririding was closed, and the coupler on the ly a question of fact, to be determined by the north end of the other car was open, so that jury from a consideration of all attending they were in proper condition to couple by circumstances. McClure v. Hoopeston Gas impact. The cars came together, and the Co., 303 Ill. 89, 135 N. E. 43, 25 A. L. R. 250; drawbars entered, but the coupling did not | Illinois Central Railroad Co. v. Siler, 229 make. Plaintiff in error alighted, and Ill. 390, 82 N. E. 362, 15 L. R. A. (N. S.) 819, walked south to the point where the single 11 Ann. Cas. 368; Great Northern Railway car had come to a stop. He signaled the en- Co. v. Otos, 239 U. S. 349, 36 S. Ct. 124, 60 gineer to move south with the string of L. Ed. 322. It can only arise as a question

The couplers came in contact, but of law when the facts are not only undisagain the coupling failed to make. There- puted, but are also such that there can be upon plaintiff in error went between the no difference in the judgment of reasonable two cars and closed the coupler on the car men as to the inferences to be drawn from to be picked up by manipulating it with his them. hands. In order to effect a coupling it was [9-11] If the injury to plaintiff in error is necessary to open the coupler on the other directly attributable to the wrong of decar, and, while he was climbing through be- fendant in error in failing to equip its cars tween the two cars to operate the lift to with proper couplers, and no new force of open the coupler, the engineer moved the itself sufficient to stand as the cause of the string of cars south, and the right foot of injury intervened, the negligence of defendplaintiff in error was caught between the ant in error must be considered the pros. couplers and crushed. The record does not imate cause of the injury, if it could have show that plaintiff in error at the time of been foreseen by the exercise of ordinary his injury was engaged in interstate com care that injury might or would result from

such negligence. Morrison v. Flowers, 308 [3-6] Defendant in error introduced much | 111. 189, 139 N. E. 10; Follett v. Illinois Centestimony to the effect that the coupler was tral Railroad Co., 288 Ill. 506, 123 N. E. not defective, and that its failure to couple 592. An intervening efficient cause is a was due to the failure of plaintiff in error new and independent force which breaks to have the couplers in proper alignment. the causal connection between the original There was also evidence to the effect that the wrong and the injury, and itself becomes the foot of plaintiff in error was caught while direct and immediate cause of the injury. he was kicking one of the couplers while Pullman Palace Car Co. v. Laack, 143 Ill. the train was moving, which was in viola-242, 32 N. E. 285, 18 L. R. A. 215. It is not tion of a rule known to plaintiff in error. It sufficient that the failure of defendant in



(145 N.E.) error to equip its cars with proper couplers | tiff in error could have required the engineer furnished the condition by which the injury to back the string of cars away from the was made possible. Seith v. Commonwealth other car and hold them in that position unElectric Co., 241 III. 252, 89 N. E. 425, 24 til he passed to the other side of the string L. R. A. (N. S.) 978, 132 Am. St. Rep. 204. of cars and adjusted the coupler. It is posAn act may furnish the occasion for anoth- sible that there were other courses of acer act, and such second act may be the cause tion that would ave been safe, but whether of an injury without the first act in any he should have chosen one of the other coursmanner being a contributing cause of such es under the circumstances is debatable. It injury. The second act may be the result of is one thing to judge a situation in cold some intervening cause in no manner flow- abstraction and another to form a judgment ing from the original act, but which cause is on the spot. The movement of a train regiven an opportunity to operate through the quires prompt action and therefore quick occasion furnished by such original act. The decisions. Chicago & Alton Railway Co. cause of an injury is that which actually v. Walters, 217 Ill. 87, 75 N. E. 441. In produces it, while the occasion is that which choosing the course of action he did, plaintiff provides an opportunity for the causal agen- in error selected one of several courses left cies to act. Where the party responsible open to him and to which he was driven by for the initial act knows or should know the fault of defendant in error in failing to that, if the occasion is given, such interven- properly equip its cars. The movement of ing cause will be likely to exert itself, the the string of cars was an act of defendant furnishing of such an occasion may be in in error directly connected with the coupling itself an act of negligence causing such party of cars in a switching movement, and was to be liable for the result flowing as the not an intervening efficient cause of the ineffect of such intervening cause, where such jury independent of the unlawful act of fail. intervening cause is within the control of ing to equip the cars with proper couplers. the party responsible for the initial act. Grand Trunk Western Railway Co. v. LindFletcher v. South Dakota Central Railway say, 233 U. S. 42, 34 S. Ct. 581, 58 L. Ed. Co., 36 S. D. 401, 155 N. W. 3.

838, Ann. Cas. 1914C, 168; Burho v. Minne(12) Applying the law as announced to the apolis & St. Louis Railway Co., 121 Minn. facts in this case, it must be held that the 326, 141 N. W. 300; Southern Pacific Co. v. failure of defendant in error to equip its Thomas, 21 Ariz, 355, 188 P. 268; Alabama cars with couplers that would couple by im- & Vicksburg Railway Co. v. Dennis, 128 pact was the proximate cause of the injury Miss. 298, 91 So. 4; York v. St. Louis, Iron to plaintiff in error. When the coupling Mountain & Southern Railway Co., 86 Ark. failed to make on two attempts, plaintiff in 244, 110 S. W. 803; Tennessee, Alabama & error undertook to adjust the couplers so Georgia Railroad Co. v. Drake (C. C. A.) that they would couple by impact. He closed 276 F. 393. the coupler on the car which he had been For the error committed by the Appellate directed to remove from the main track, and Court in reversing the judgment of the triwas climbing through between the cars to al court without remanding the cause for use the lever to open the coupler on the a new trial, the judgment of the Appellate south end of the string of cars when the Court is reversed, and the cause is remanded string was moved toward the standing car, to that court for further proceedings. and his foot was crushed. Of course, plain Reversed and remanded.

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