Manufacturers Mercantile Co. v. M. R. Co., 169 Ill. App. 562.

but simply makes them assignable by endorsement and therefore subject to all the defenses which may be asserted against the assignor unless notice of such assignment is given to the warehouseman or bailee. Canadian Bank v. McCrea, 106 Ill. 281; Shaw v. Railroad Company, 101 U. S. 557.

If the assignee of the warehouse receipts, such as those shown in evidence in this case, would protect himself as against the world he must give prompt notice of the assignment thereof to him, and failure to do so, though it does not destroy his right, exposes him to the danger of being overreached by subsequent assignment to another or to the rights of an attaching creditor of the assignor. As said in Morris v. Cheney, 51 Ill. 451, "It is no doubt true that such an assignee, in order to prove his title against the debtor, must give immediate and prompt notice of assignment to him, still if he does not give such notice it does not destroy his right, but exposes it to be overreached by subsequent assignment to another."

Appellant having never been notified of appellee's claim of title to the property was summoned as garnishee in the Municipal Court, and required to make answer under oath in regard to the property in question, and this it did faithfully and clearly, and having answered and shown all the facts within its knowledge in regard to the ownership of the property it discharged its full duty with reference thereto, and its action in so doing cannot be regarded as tending to prove a conversion of the property. The taking of the property under the writ of attachment was a full justification, and a good legal excuse for its failure to deliver the property taken from it by legal proceeding to the owner of the warehouse receipts, who had failed to notify it of its title to the property. If it had known and had been able to answer that the plaintiff was the real owner of the property at the time

Manufacturers Mercantile Co. v. M. R. Co., 169 Ill. App. 562.

of the service of the garnishment writ, it could have set up such fact, and could have notified plaintiff of the proceedings in the Municipal Court whereby it was sought to subject the property to the payment of the debt of Lamont. This would have been a complete answer to the process of garnishment, and must have resulted legally in a judgment in favor of the garnishee. Hurd's Revised Statutes, chap. 62, sec. 16; Sandburg v. Papineau, 81 Ill. 446; Story on Bailments, Sec. 442.

In our opinion the court erred in excluding the evidence of the witness Espert, secretary and treasurer of appellant, as to whether or not any notice was ever given to appellant by plaintiff of its ownership of the property in question. We think the evidence was material and competent.

We think the trial court for the reasons stated erred in directing a verdict, for there were questions of fact in the case which should have been passed upon by the jury.

For the errors indicated the judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.

Per Curiam. This cause was not tried in the Court below with any reference to the Act of 1907, entitled an Act in regard to warehouse receipts, and nothing was said in the briefs and arguments in regard to that act or its provisions, although the receipts in question were issued shortly after the act went into effect. On the petition for a rehearing in this court it is urged for the first time that the receipts are negotiable under that act. In our opinion the receipts in question do not contain all the necessary elements which that act provided warehouse receipts must embody in order to make them negotiable. They are

Smith v. Chicago City R'y Co., 169 Ill. App. 570.

therefore not negotiable under the terms and provisions of the act.

Reversed and remanded.

Claudia Smith, Defendant in Error, v. Chicago City Railway Company, Plaintiff in Error.

Gen. No. 16,206.

1. PASSENGER AND CARRIER-what does not preclude right of recovery for personal injuries. A carrier may not negligently place a passenger in a situation where the passenger is bound to choose between two courses at her peril and then interpose the defense that the act of the passenger was the intervening cause of the injury.

2. INSTRUCTIONS-when summing up the facts constituting negligence not erroneous. Held, that the instruction in question in this cause was not erroneous where reference to certain facts was made-the jury, however, being required before rendering a verdict in favor of the plaintiff to find that the plaintiff "was injured in manner and form as charged in her statement of claim.''

3. INSTRUCTIONS-when upon damages in personal injury case erroneous. An instruction is erroneous which authorizes a recovery of damages for pain in the future upon the belief by the jury in a mere possibility that future pain and suffering may be caused by the injury. Held, however, that the instruction in this case was not likely to have been so understood by the jury and that no prejudice could reasonably be said to have resulted therefrom.

4. MUNICIPAL COURT-what essential to justify reversal of judgment of. No order or judgment of the Municipal Court will be reversed on review unless the reviewing court shall be satisfied from the record that such order or judgment is contrary to the law and the evidence, or that such order or judgment resulted from substantial errors of the Municipal Court directly affecting the matters at issue between the parties.

5. EVIDENCE-when system of receiving reports of accidents not competent. If the defendant had notice of an accident the day after its occurrence it is not error to refuse to permit it to show its system

Smith v. Chicago City R'y Co., 169 Ill. App. 570.

of receiving reports from its employes and the fact that it had received no report of the accident in question.

Tort. Error to the Municipal Court of Chicago; the HON. ARNOLD HEAP, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910. Affirmed. Opinion filed April 19, 1912, on re

hearing.

CHARLES J. GOULD and C. LE ROY BROWN, for plaintiff in error.

EDWARD H. MORRIS, for defendant in error; MARTIN J. ISAACS, of counsel.

MR. JUSTICE F. A. SMITH delivered the opinion of the court.

Defendant in error, Claudia Smith, hereinafter called plaintiff, recovered in the Municipal Court of Chicago a judgment for $1,000 in an action of the fourth class against the Chicago City Railway Company, plaintiff in error, hereinafter called the defendant.

The action was in tort to recover damages for an injury to her person received on or about March 28, 1908, in State street, near Thirty-fourth street, in the city of Chicago, caused by the negligent and sudden starting of the defendant's car when the plaintiff was a passenger on the car, and was in the act of alighting therefrom. The trial in the court below resulted in a verdict in favor of the plaintiff, and a judgment thereon for $1,000.

The defendant prosecutes this writ of error and urges three grounds for a reversal of the judgment: First, the evidence is insufficient to establish liability; second, the court erroneously instructed the jury at the request of the plaintiff both on the issue of liability and on the issue of damage; and third, the court erred in rejecting evidence offered by the defendant.

In support of the first ground for reversal it is urged that the action of the defendant's servants in starting the car was not the proximate cause of the

Smith v. Chicago City R'y Co., 169 Ill. App. 570.

injury, and that plaintiff's negligence contributed thereto.

The evidence shows without controversy that Mrs. Smith with her little boy four years old, and a Mrs. Warren boarded a south bound State street car at Twenty-seventh and State streets. When the car was between Thirty-third and Thirty-fourth streets Mrs. Smith asked the conductor to let her off the car at Thirty-fourth street. Her little boy was at that time sitting in her lap. Mrs. Smith and the little boy and Mrs. Warren went to the rear platform of the car, which had stopped when Mrs. Smith left her seat in the car. On the platform were two persons. The car stopped at the south side of Thirty-fourth street and these two passengers alighted first. Mrs. Smith with her right hand held the left hand of her little boy and attended to his exit from the car, and while she was in the act of leaving the car, with one foot on the step and the other on the platform of the car, and while the boy was still clinging to Mrs. Smith's hand, Mrs. Smith with her left hand was grasping the upright hand rail. At this point the conductor gave the signal for starting the car, and the car started while the plaintiff was in the position indicated. The evidence shows that the boy was clinging to plaintiff's hand, and after the car started was being dragged along. Thereupon Mrs. Smith of her own volition jumped from the car to the ground. As she did so the boy fell to the pavement. Mrs. Smith was whirled around by the movement of the car but did not fall. She received injuries as appears by the evidence. Mrs. Warren remained on the car until it stopped at Thirtyfifth street.

At the time that Mrs. Smith requested the conductor to let her off the car at Thirty-fourth street, he was passing from the rear end of the car to the front end, and was between the middle of the car and the front end of the car when he gave the bell to start the car.