Additional opinion of the Court.

been realized, as held in Mosier v. Norton, 83 Ill. 524, as coun

sel seem to suppose.

The judgment is affirmed.

Judgment affirmed.

Subsequently, on the 7th day of October, 1889, upon an application for rehearing, the following additional opinion was filed:

SCHOLFIELD, J.: A petition has been presented to us, praying for a rehearing upon this point, contended for by plaintiffs in error in their original argument, and of which no notice is taken in the foregoing opinion, namely: Conceding that the relations between Jackson and Lynch were those of mortgagor and mortgagee, yet inasmuch as they expressly agreed, in the instrument witnessing the continuance of that relation, that in the case of the failure of Lynch to make payments at the time therein stipulated, Jackson was authorized to declare the right of Lynch to redeem forfeited, and Jackson did declare such forfeiture by devising the property to plaintiff in error D. B. Jackson, a court of equity can not relieve Lynch from the consequences of such declaration of forfeiture. Authorities. were cited in the argument, and are repeated in the petition, to the effect that where the parties to a contract for the conveyance of real estate make time of the essence of the contract, a failure to perform at the time will absolutely preclude the party so failing, from having a performance of the contract,that in such case such parties' rights are forfeited and incapable of being enforced, in equity as well as at law.

The point was not noticed in the opinion, because it was not supposed it was intended to be contended that this doctrine is applicable to the case, save upon the hypothesis that it was found that the transaction was an absolute conveyance and a contract of re-sale. That, if such had been found to be the fact, the doctrine contended for would have been applicable, there can be no question. But it was found that the transaction was not an absolute conveyance and a contract of re-sale,

Additional opinion of the Court.

but a mortgage of the property; and the fact of mortgage being established, it was assumed that it is elementary that the mortgagor can not be deprived of his equity of redemption by any form of contract, however comprehensive and unmistakable its terms showing that such was intended to be its effect. A court of chancery, when it ascertains that the object of a transaction is to give security for a debt, "will always relieve the mortgagor from the consequences of his failure to perform the condition." 2 Jones on Mortgages, (2d ed.) sec. 1039; Bispham's Eq. secs. 153, 154; 3 Pomeroy's Eq. secs. 1193, 1219. It is said in Jones on Mortgages, ubi supra: "The right of redemption is the creature of the law. It is not in terms expressed by the parties in the mortgage. But whatever be the form of the transaction, if intended as a security for money it is a mortgage, and the right of redemption attaches to it. Although a deed contain a condition that it shall be absolute and without redemption if a certain sum be not paid by the grantor at a fixed time, and the condition is not punctually performed, there is a right of redemption."

It is said in note 1 to section 1193 of 3 Pomeroy's Eq.: "This doctrine is based upon the relative situation of the debtor and the creditor. It recognizes the fact that the creditor necessarily has a power over his debtor which may be exercised. inequitably, that the debtor is liable to yield to the exertion of such power; and it protects the debtor absolutely from the consequences of his inferiority, and of his own acts done through infirmity of will. The doctrine is universal in its application, and underlies many special rules of equity. It extends to stipulations limiting the time of redemption, or the parties who may redeem. Notwithstanding all such stipulations, the time to redeem is general." See the numerous cases there cited.

The prayer of the petition must be denied.

Rehearing denied.

Syllabus. Brief for the Appellant.

LEONARD HODGES

v.

ELIZABETH BEARSE.

Filed at Ottawa May 16, 1889.

1. APPEALS-reviewing the facts. In an action on the case for a personal injury resulting from alleged negligence, if there is evidence tending to support the verdict of the jury, the propriety of their finding is not open to consideration in this court.

2. EVIDENCE to rebut negligence-no previous accident had happened. In an action for a personal injury from negligence in the construction and operating of an elevator in a building, and in failing to employ a competent person to manage and operate the same, the defendant offered to prove that no accident of any kind had happened to the elevator, previous to the one in question, during the four and a half years it had been in use, which the court refused to allow: Held, that the evidence was properly excluded, as it did not tend to rebut the evidence of negligence in the particular instance.

3. PRACTICE-directing what the verdict shall be. Where there is evidence tending to prove the plaintiff's case, or sufficient to present a proper case to the jury, an instruction to find for the defendant will be properly refused.

APPEAL from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. ELLIOTT ANTHONY, Judge, presiding.

Messrs. STILES & LEWIS, for the appellant:

The court erred in not excluding the plaintiff's evidence from the jury, and in refusing to instruct the jury to find for the defendant.

The obligation resting upon an owner is, that reasonable care and skill have been exercised to render the premises reasonably fit for the uses which he has invited others to make of them. Ritterman v. Ropes, 51 N. Y. 25; Lorney v. McLean, 129 Mass. 33; Henkel v. Murr, 31 Hun, 28; Manufacturing Co. v. Ballou, 71 Ill. 417; Cooley on Torts, 551.

Opinion of the Court.

The refusal to permit the defendant to show that the elevator had run since the building was put up, a period of four years and a half, without an accident of any kind, was error. This evidence was important, as bearing on the question of negligence. Sinton v. Butler, 40 Ohio St. 158.

The action of the court below, in itself fixing the amount of damages, and compelling a remittitur to that amount, instead of granting a new trial, was error. Railway Co. v. Cummings, 20 Bradw. 333.

Messrs. BRANDT & HOFFMAN, and Mr. JOSEPH N. BARKER, for the appellee.

Mr. JUSTICE BAILEY delivered the opinion of the Court:

This was an action on the case, brought by Elizabeth Bearse against Leonard Hodges, to recover damages for a personal injury received by the plaintiff by means of the fall of a passenger elevator on the premises of the defendant. On the 17th day of December, 1886, the date of the injury, the defendant was, and for several years had been, the owner of a large fivestory brick tenement house on the corner of Indiana avenue and Twenty-second street, Chicago. The upper stories of said building were divided into apartments, which were usually rented to and occupied by tenants, and at the date of said injury, the plaintiff and her sister were tenants of the defendant occupying rooms in the fifth story of said building. For the convenience of his tenants and others desiring to use it, the defendant had caused a passenger elevator to be constructed in said building, and the same was being operated by one of the defendant's employes. On the evening of the day above mentioned, the plaintiff and her sister, for the purpose of being conveyed to the fifth floor of the building, entered said elevator, and while they were going up, the elevator proved to be unmanageable, so that the employe in charge was unable to stop

Opinion of the Court.

it, and it continued on until it collided with the works overhead, and then fell, seriously injuring the plaintiff.

The declaration charges negligence in the defendant in failing to provide a strong, substantial and safe elevator, with proper safety appliances and machinery attached, in failing to employ safe and trustworthy servants and agents to manage the same, and also negligence on the part of the servant in charge of the elevator in not using proper care and diligence in running and operating it. The defendant pleaded not guilty, and on trial before the court and a jury, the issues were found for the plaintiff, and her damages assessed at $10,000. From this sum the plaintiff remitted $3000, and the court, after denying the defendant's motion for a new trial, gave judgment in favor of the plaintiff for $7000 and costs. On appeal to the Appellate Court said judgment was affirmed, and by a further appeal the record is now brought to this court.

The counsel for the defendant strenuously insisted in the trial court, and insist here, that there is no evidence which, when properly construed, has a tendency to sustain the charges. of negligence made by the declaration. We have given their argument on this point careful consideration, and are clearly of the opinion that their contention can not be sustained. It would serve no useful purpose for us to analyze the evidence in detail, and we shall therefore content ourselves with saying that it was manifestly sufficient to present a proper case for the jury, and that the trial court ruled correctly in refusing to instruct the jury to find a verdict for the defendant. The jury having found the defendant guilty, and there being evidence tending to support their verdict, the propriety of their finding is not a question open for consideration in this court.

Counsel for the defendant, in their brief, suggest rather than argue two or three points arising upon certain rulings of the court during the progress of the trial. The first of these arises upon the refusal of the court to allow the defendant to prove by his witnesses that no accident of any kind had happened