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(145 N.E.)

lieved, the charges in the declaration, in- I 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 other 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 defendants that their conduct was the sole cause of the alienation of her husband's affections, but if the jury believed from a preponderance of the evidence that plaintiff's husband's affections were alienated, and that the acts and conduct of defendants were the controlling cause of the alienation, plaintiff would have a right of action.

[5] The court gave 17 instructions for defendants, covering very fully all the rights and defenses of defendants, and repeating the substance of the rules of law announced in many of them. The mere omission to state in plaintiff's second and third instructions the difference the law recognizes in alienation suits against parents and strangers could not have prejudiced defendants. The action was against parents, and the instructions told the jury it was incumbent on

ants, it was not possible for the jury to be misled. There were no contradictory in

The objection made to these instructions is: It is claimed that they would authorize a recovery 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 proxiproper 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 alienating her husband's affections, and the court 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 defendants, and was not the result of some other cause or circumstance. The court also, at the request of defendants, instructed the jury that on the subject of alienation the rights of parents were different from the rights of strangers; that defendants had a right to treat plaintiff's husband as a son; that they

ing it.

There are no errors of law or any other questions raised, which this court has a right to consider, that would justify a reversal of the judgment, and it is affirmed. Judgment affirmed.

HEARD, J., took no part in this decision.

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1. Counties192-Tax for tuberculosis sanitarium fund may be levied in gross.

County tax for tuberculosis sanitarium fund may be levied in gross, and sums for construction or purchase and for maintenance need not be separately stated.

2. Highways 127 (3)-Consent of board of town auditors to excess road and bridge tax may be given on first Tuesday in September.

Under Township Organization Act, art. 13, § 3, as amended by Laws 1923, p. 628, consent of board of town auditors to road and bridge tax in excess of 50 cents per $100 valuation, as required by Road and Bridge Act, § 56, may be given on first Tuesday in September.

Appeal from Christian County Court; C. J. Vogelsang, Judge.

Action by the People, on the relation of Alva Shrout, County Collector, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Hogan & Reese, of Taylorville, for appellant.

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

[1, 2] The road and bridge tax of each of the towns of 'Pana and Rosemond was in excess of 50 cents on each $100 valuation of the taxable property in the town. The written consent to the excess, required by section 56 of the act in relation to roads and bridges, was obtained from the board of auditors of each of these towns on September 4, 1923, which was the first Tuesday of the month, before the tax was certified. Appellant's contention with reference to the road and bridge taxes is that, since the amendment of section 3 of article 13 of the Township Organization Act (Laws 1923, p. 628), which permits meetings of the board of auditors of a town to be held upon request of the supervisor or of any two members of the board, the written consents should have been secured prior to the first Tuesday in September, and that, not having been so obtained, the road and bridge taxes in question

are void. This court has held adversely to both of appellant's contentions in People v. Wabash Railway Co. (No. 16338) 145 N. E. 724. That authority is decisive of the instant case. The objections were properly overruled.

The judgment of the county court will be affirmed.

Judgment affirmed.

(315 III. 131)

PHILLABAUM v. LAKE ERIE & W. R. CO. (No. 16086.)

(Supreme Court of Illinois. Dec. 16, 1924.)

DE YOUNG, J. The county collector of Christian county made application to the county court of that county for judgment against real estate upon which the taxes for the year 1923 were delinquent. The Cleve. land, Cincinnati, Chicago & St. Louis Railway Company filed objections to the tuberculosis sanitarium tax and to the road and

bridge taxes of the towns of Pana and Rosemond. The objections were overruled, and judgment was rendered against the property of the railway company for $628.72. It prosecutes this appeal to review the county court's judgment.

The board of supervisors of Christian county, at its meeting in September, 1923, adopted a resolution that $30,000 be appropriated for the purpose of constructing or purchasing and maintaining a tuberculosis sanitarium, as authorized by the people of the county, and that the sum mentioned be raised by levying a tax upon all the taxable property in the county. Pursuant to this resolution the county clerk extended a rate of 12 cents as a separate item to raise the tax. The contention of appellant is that the tax was levied for two distinct purposes: First, to construct or purchase, and, secondly, to maintain, the sanitarium; that the sum required for each purpose should have been stated separately; and that the tax having been levied in gross is void.

Appeal and error 1094 (5) Supreme Court's inquiry, where case tried by jury and reversed by Appellate Court on facts without remanding, stated.

In negligence case tried by jury, which Appellate Court reversed on facts without remanding the cause, Supreme Court's inquiry was limited to ascertaining whether there was in record any evidence supporting charge of plaintiff, or whether defense of contributory negligence was so conclusively established that defendant was entitled to judgment as a mat

ter of law.

2. Appeal and error 1175(5)-Appellate Court cannot weigh evidence in law case tried by jury, where evidence conflicting.

Where a law case is tried by jury, and evidence is conflicting, Appellate Court cannot weigh and determine on which side preponderance lies, and enter an original judgment on its consideration of the evidence contrary to jury's verdict.

3. Master and servant

286(13)-Whether couplers crushing switchman's foot were defective held for jury.

foot crushed in coupling operation, whether In switchman's action for injuries to his couplers were defective in violation of Federal Safety Appliance Act (U. S. Comp. St. $$ 8605-8623) held for jury.

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

(145 N.E.)

129 (6)-Defective couplers held proximate cause of injury to switchman.

4. Appeal and error 994(1), 995-Supreme [ 12. Master and servant
Court does not weigh evidence nor determine
credibility of witnesses.

It is not the province of Supreme Court to weigh evidence nor determine credibility of witnesses.

5. Master and servant 289 (35)-Whether rules were in effect and violation thereof contributed to switchman's injury held for jury. In railroad switchman's action for injuries to foot crushed in coupling operation, whether rules he was claimed to have violated were in effect at time of injury or had been abrogated by nonobservance, or whether violation thereof contributed to injury, held for jury. 6. Master and servant 289 (33)-Contributory negligence of switchman coupling cars held for jury.

In railroad switchman's action for injuries to foot crushed in coupling operation, whether he was guilty of contributory negligence held for jury.

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injury question for jury.

What is the proximate cause of an injury is ordinarily a question of fact to be determined by jury from consideration of all attending circumstances.

8. Negligence 136(9)—Proximate cause of injury question of law only when but one inference can be drawn from facts.

Proximate cause of an injury can arise as a question of law only when facts are undisputed, and are such that there can be no difference in judgment of reasonable men as to inferences to be drawn from them.

9. Master and servant

›129(6)—Proximate cause of injury from defective couplers. If injury to switchman was directly attributable to railroad's failure to equip its car with proper couplers, and no new force of itself sufficient to stand as cause of injury intervened, railroad's negligence would be proximate cause of injury, if it could have been foreseen by exercise of ordinary care that injury might or would result from such negligence. 10. Negligence 62(1) "Intervening efficient cause" defined.

An "intervening efficient cause" is a new and independent force which breaks causal connection between original wrong and injury, and itself becomes direct and immediate cause of injury.

[Ed. Note. For other definitions, see Words and Phrases, Second Series, Intervening Cause.]

11. Negligence 62(I)-Furnishing of occasion for intervening cause within control of party responsible for initial act of negligence. Where party responsible for initial act knows or should know that, if occasion is given, an intervening cause will be likely to exert itself, furnishing of such an occasion may be in itself an act of negligence, causing such party to be liable for result flowing as effect of such intervening cause, where it is within control of party responsible for initial act.

Where switchman undertook to adjust couplers so they would couple by impact by closing coupler on car he had been directed to tween cars to use lever to open the other couremove from main track, and was climbing bepler when cars were moved toward standing car, and his foot was crushed, failure of railroad to equip its cars with couplers that would couple by impact was proximate cause of switchman's injury and movement of string of cars was not an intervening efficient cause.

Error to Appellate Court, Second District, on Appeal from Circuit Court, Peoria County; Charles V. Miles, Judge.

Action by Henry O. Phillabaum against the Lake Erie & Western Railroad Company. Judgment for plaintiff was reversed by the Appellate Court, and plaintiff brings certiorari. Reversed and remanded.

Henry R. Rathbone, of Chicago, and Clarence W. Heyl, of Peoria (Heyl & Heyl, of Peoria, of counsel), for plaintiff in error.

John B. Cockrum and J. G. McKay, both of Indianapolis, Ind., and Miller, Elliott & Westervelt, of Peoria, for defendant in error.

THOMPSON, J. This is an action for damages based on a violation of the Federal Safety Appliance Act (U. S. Comp. St. §§ 8605-8623), which makes it unlawful for any railroad engaged in interstate commerce to use a car not equipped with couples coupling automatically by impact. The Lake Erie & Western Railroad Company, defendant in error, is a common carrier engaged in interstate commerce, and at the time of the injury in question Henry Phillabaum, plaintiff in error, was employed by defendant in error in a switching movement. There was a verdict and judgment in favor of plaintiff in error in the circuit court in Peoria county. On appeal the Appellate Court for the Second District reversed this judgment, and incorporated in its judgment a finding of fact to the effect that the injury was not caused by the use of a defective coupler but by the contributory negligence of plaintiff in error. This court has granted a writ of certiorari to review the judgment of the Appellate Court.

[1, 2] This being a case tried by jury, and the Appellate Court having reversed the judgment on the facts without remanding the cause, the inquiry here is limited to ascertaining whether there is in the record any evidence supporting the charge of plaintiff in error, or whether the defense is so conclusively established that defendant in error is entitled to judgment as a matter of law. Where a law case is tried by a jury, and the 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 determine on which side the preponderance of the evidence lies and enter an original judgment on its consideration of the evidence contrary to the verdict of the jury. Mirich v. Forschner Contracting Co., 312 Ill. 343, 143 N. E. 846.

Defendant in error contends that the judgment of the Appellate Court should be affirmed for the reasons: (1) That there is no evidence in the record showing negligence on its part; (2) that the failure of plaintiff in error to observe certain safety rules known to him was the cause of his injury; and (3) that the movement of the train while plaintiff in error was in a place of danger was a cause of the injury, wholly independent of the condition of the couplers.

It is unnecessary to a decision of this case to set out the evidence in detail. Plaintiff in error, in obedience to orders of his superior, was at the time of his injury engaged in removing a freight car from the main track of defendant in error. The track runs north and south, and the engine engaged in the switching operation was on the north end of a string of three freight cars. As the string moved south to pick up the car to be moved plaintiff in error rode on the southeast corner of the car at the south end of the string. The coupler on the car on which he was riding was closed, and the coupler on the north end of the other car was open, so that they were in proper condition to couple by impact. The cars came together, and the drawbars entered, but the coupling did not make. Plaintiff in error alighted, and walked south to the point where the single car had come to a stop. He signaled the engineer to move south with the string of cars. The couplers came in contact, but again the coupling failed to make. Thereupon plaintiff in error went between the two cars and closed the coupler on the car to be picked up by manipulating it with his hands. In order to effect a coupling it was necessary to open the coupler on the other car, and, while he was climbing through between the two cars to operate the lift to open the coupler, the engineer moved the string of cars south, and the right foot of plaintiff in error was caught between the couplers and crushed. The record does not show that plaintiff in error at the time of his injury was engaged in interstate com

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is not the province of this court to weigh this evidence nor to determine the credibility of witnesses. It is clear from the record

that there is substantial evidence showing that the couplers were defective, and, this being true, neither this court nor any other court has the power to deprive plaintiff in error of his right to a trial of the facts by a jury. Whether the rules which it is claimed plaintiff in error violated were in effect at the time of the injury or had been abrogated by nonobservance, or whether the violation of the rules contributed to the injury, were questions of fact for the jury. Preble v. Wabash Railroad Co., 243 Ill. 340, 90 N. E. 716; Hampton v. Chicago & Alton Railroad Co., 236 Ill. 249, 86 N. E. 243. He was certainly not guilty of such contributory negligence as would justify a holding that his right to recover was barred as a matter of law. Chicago, Rock Island & Pacific Railway Co. v. Brown, 229 U. S. 317, 33 S. Ct. 840, 57 L. Ed. 1204; Popplar v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co., 121 Minn. 413, 141 N. W. 798, Ann. Cas. 1914D, 383.

[7, 8] The important question in the case is whether the movement of the train was an intervening independent act which was the proximate cause of the injury. What is the proximate cause of an injury is ordinarily a question of fact, to be determined by the jury from a consideration of all attending circumstances. McClure v. Hoopeston Gas Co., 303 III. 89, 135 N. E. 43, 25 A. L. R. 250; Illinois Central Railroad Co. v. Siler, 229 Ill. 390, 82 N. E. 362, 15 L. R. A. (N. S.) 819, 11 Ann. Cas. 368; Great Northern Railway Co. v. Otos, 239 U. S. 349, 36 S. Ct. 124, 60 L. Ed. 322. It can only arise as a question of law when the facts are not only undisputed, but are also such that there can be no difference in the judgment of reasonable men as to the inferences to be drawn from them.

[9-11] If the injury to plaintiff in error is directly attributable to the wrong of defendant in error in failing to equip its cars with proper couplers, and no new force of itself sufficient to stand as the cause of the injury intervened, the negligence of defendant in error must be considered the prox imate cause of the injury, if it could have been foreseen by the exercise of ordinary care that injury might or would result from such negligence. Morrison v. Flowers, 308 [3-6] Defendant in error introduced much Ill. 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

merce.

(145 N.E.)

In

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 Ill. 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 have 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. 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 failintervening 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. Minneapolis & St. Louis Railway Co., 121 Minn. 326, 141 N. W. 300; Southern Pacific Co. v. Thomas, 21 Ariz. 355, 188 P. 268; Alabama & Vicksburg Railway Co. v. Dennis, 128 Miss. 298, 91 So. 4; York v. St. Louis, Iron Mountain & Southern Railway Co., 86 Ark. 244, 110 S. W. 803; Tennessee, Alabama & Georgia Railroad Co. v. Drake (C. C. A.) 276 F. 393.

[12] Applying the law as announced to the facts in this case, it must be held that the failure of defendant in error to equip its cars with couplers that would couple by impact was the proximate cause of the injury to plaintiff in error. When the coupling failed to make on two attempts, plaintiff in error undertook to adjust the couplers so that they would couple by impact. He closed the coupler on the car which he had been directed to remove from the main track, and was climbing through between the cars to use the lever to open the coupler on the south end of the string of cars when the string was moved toward the standing car, and his foot was crushed. Of course, plain

For the error committed by the Appellate Court in reversing the judgment of the trial court without remanding the cause for a new trial, the judgment of the Appellate Court is reversed, and the cause is remanded to that court for further proceedings. Reversed and remanded.

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