Cabiness v. Texas T. & L. P. Co., 169 Ill. App. 353.

F. M. Cabiness, Appellant, v. Texas Tie and Lumber Preserving Company, Appellee.

Gen. No. 16,475.

1. COSTS-propriety of taxation for expenses of taking depositions of non-resident witnesses in chancery. Held, that section 37 of the Evidence Act applied and justified the taxation complained of.

2. COSTS—when taxation or apportionment in chancery not disturbed. The discretion of the chancellor in taxing or apportioning costs will not be interfered with by the reviewing court if such discretion be exercised according to equitable principles, and is supported by the evidence in the case.

Bill in chancery. Appeal from the Superior Court of Cook county; the HON. GEORGE A. DUPUY, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910. Affirmed. Opinion filed March 30, 1912.

GEORGE E. WISSLER and CHARLES C. SPENCER, for appellant.

SCOTT, BANCROFT & STEPHENS, for appellee.

MR. JUSTICE DUNCAN delivered the opinion of the court.

In an original suit in chancery the decree of the Superior Court provided that the bill should be dismissed at complainant's costs. The clerk of said court in making up the bill of costs in said cause taxed against F. M. Cabiness, the complainant therein, the sum of $93.30 commissioners' fees for taking depositions of the defendant's witnesses before notaries in the states of Texas and Tennessee. The complainant made a motion to retax the costs, and the court allowed the defendant forty-seven dollars for commissioners' fees in taking the depositions, and ordered the same taxed against the complainant in that suit. The complainant, Cabinees, has appealed from said order.

Vol. CLXIX 23

Cabiness v. Texas T. & L. P. Co., 169 Ill. App. 353.

The evidence before the court upon the motion to retax costs was, in substance, that the total number of words in the depositions taken was 31,350; and that appellee paid the said notaries for taking said depositions the sum of $93.30.

Appellant's objections to the allowance of said costs. against him are, (1) that there is no provision of law in this state for the taxing as costs the expenses of taking depositions outside of Illinois; and (2) that the amount allowed by the court is grossly excessive.

The statute provides that whenever a party to a suit requires the examination of witnesses attending before any commissioner, judge, justice of the peace, clerk or other person authorized to take depositions, as provided by the statute, such party shall pay the expenses thereof, but may, if successful in the suit, be allowed for the same in the taxation for costs. Sec. 37 of Chap. 51, Hurd's Rev. Statutes of 1909. The foregoing section undoubtedly applies to the expenses of taking depositions of non-resident witnesses in a chancery case as provided in Sections 26 and 28 of said Chapter 51.

"Upon the complainant dismissing his bill in equity, or the defendant dismissing the same for want of prosecution, the defendant shall recover against the complainant full costs; and in all other cases in chancery, not otherwise directed by law, it shall be in the discretion of the court to award costs or not." Sec. 18 of Chap. 33, Hurd's Stat. of 1909.

The discretion of the chancellor in taxing or apportioning costs will not be interfered with by the reviewing court, if such discretion be exercised according to equitable principles, and is supported by the evidence in the case. Scott v. Beach, 172 Ill. 273; Highley v. Deane, 168 Ill. 266.

The amounts allowed for the taking of the depositions appear to be reasonable, at any rate they are certainly not shown to be unreasonable. As they were

Skulimowski v. Deahl & Deahl, 169 Ill. App. 355.

proper items of costs, the order and decree of the court is affirmed.

Decree affirmed.

Josef Skulimowski, Appellee, v. Peter F. Deahl and U. Sam Deahl, Appellants.

Gen. No. 15,915.

1. EVIDENCE-effect given to scientific computations of physical forces. Accidents happen so instantaneously and unexpectedly, and slight changes in position and circumstances of the machinery and the unfortunate sufferer, so completely alter any given situation and introduce new factors into the problem, that the Court must consider scientific computations at the best as but weak substitutes for actual experience and the testimony of eyesight.

2. VERDICTS-when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.

3. MASTER AND SERVANT-duty to warn upon change in appliances. If the master make a change of appliances and by so doing increase the hazard of the employe pursuing his work in his customary manner it is the duty of the master to notify such servant of the increased danger to which he is exposed, and such servant even though experienced in working about the class of machinery in question does not assume the risk of injury if the change and the result thereof was not so open and visible that he might by the exercise of ordinary care see it, know it, and appreciate the resulting danger.

4. MASTER AND SERVANT-who not fellow-servants. An ordinary employe and a vice principal are not fellow-servants.

5. MASTER AND SERVANT—when doctrine of fellow-servants does not apply. By invoking this doctrine the master cannot escape liability for a neglect to warn of increased danger resulting from a change by him of appliances or working conditions.

6. CONTRIBUTORY NEGLIGENCE-where conditions changed by master. If a servant is injured while attempting to start machinery and such machinery might have been safely started, where the conditions in and about the machinery have been changed by the master without notifying the servant so as to increase his hazard if he employed his customary methods, it is a question of fact to be determined by the jury whether

Skulimowski v. Deahl & Deahl, 169 Ill. App. 355.

the increased danger was discoverable by the servant by the exercise of ordinary care.

7. APPEALS AND ERRORS-when sustaining objection to general question will not reverse. The action of the court in sustaining an objection to a general question will not reverse where it was plain that there was no intention during the trial to prevent proof specifically as to the matters sought to be elicited by such general question.

8. APPEALS AND ERRORS-when striking out irresponsive answer will not reverse. Held, that striking out of a portion of an answer given by a witness as irresponsive was at most harmless error which will not reverse.

9.

INSTRUCTIONS-when as to preponderance of evidence will not reverse. Held, that an instruction was not error where it implied that the number of witnesses on each side of any proposition involved in the case was one element to be considered by the jury, and other things being equal, a controlling element.

10.

INSTRUCTIONS--when useless, will not reverse. An instruction not inaccurate and not misleading, but useless and unenlightening will not reverse.

11. INSTRUCTIONS-when withdrawning and manner of withdrawal will not reverse. To give an instruction and then to withdraw it will not reverse if the withdrawal was the proper course to pursue, and to withdraw an instruction by re-reading it and telling the jury not to follow it is not calculated to produce harm, but on the other hand is likely to impress on the minds of the jury that the statement of law contained in the instruction at first given was erroneous.

12. TRIAL when refusal to submit special findings not error. Held, that there was no abuse of discretion by the trial judge in refusing to submit certain specific questions on the evidence to the jury for special findings and substituting other special findings on his own motion.

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the HON. GEorge A. Dupuy, Judge, presiding. Heard in this court at the October term, 1909. Affirmed. Opinion filed April 1, 1912. Certiorari denied by Supreme Court (making opinion final).

Statement by the Court. This appeal is from a judgment of the Superior Court of Cook county in favor of the plaintiff, Josef Skulimowski, against the defendants, Peter F. Deahl and U. Sam Deahl, for $10,000 and costs. The judgment was rendered (after a motion for a new trial and a motion in arrest of judgment made by the defendants had been respectively denied by the court) on the verdict of a jury. The

Skulimowski v. Deahl & Deahl, 169 Ill. App. 355.

declaration on which the case went to the jury contained four counts. The first alleged that the defendants ran a steam laundry at 141 East Ontario street in Chicago, under the name of the Derby Steam Laundry; that plaintiff was on May 10, 1907, in their employ; that among his duties was that of starting a machine called an extractor, a kettle shaped machine to dry clothes, which was composed of an outer shell and a perforated inner shell, and when in full motion made 2500 revolutions a minute; that this extractor was started by means of a leather belt connected with pulleys and a line shaft; that when connected this shafting and connections would start the extractor slowly; that it was the duty of plaintiff to start the extractor by means of a wooden lever that forced the belt on the pulleys and shafting, and then to accelerate the rotation of said inner shell by hand, which method of starting was well known to and approved and directed by the defendants; that the defendants removed the leather belt and substituted a canvas belt, coated or filled with a tarry substance, which caused the belt to stick closely to the pulleys, and said inner shell to revolve with great speed; that this rendered it unnecessary and dangerous for the person operating the machine to use his hands to accelerate the rotation of the inner shell; that the defendants had knowledge of this, but that the plaintiff had not; that defendants, immediately after the substitution of the canvas belt for the leather belt, directed the plaintiff to start the extractor in motion; that it thereupon became the duty of the defendants to warn the plaintiff of the danger involved in starting the machine, in that the canvas belt would start the extractor in rapid motion very suddenly; that the defendants neglected said duty and in consequence when the plaintiff, in the exercise of due care, by direction of the defendants, started said machine, and while he was attempting to accelerate by hand the rotation of the inner shell, he was, by reason