on rehearing.
The petition for a rehearing alleges that the bill of exceptions on file in the clerk’s office in the court below contained, when filed, the statement, “ and this was all the evidence,” but that, on account of the omission and neglect of the clerk, and without negligence on the part of appellant or his counsel, the record as certified to this court does not contain this all-important statement. As appears by the opinion heretofore filed in this case, we declined, in the consideration of the case, to pass upon the question of the sufficiency of the evidence to support the verdict, for the reason that the bill of exceptions, as set forth in the transcript, did not purport to contain all of the evidence. A rehearing has been prayed for in order that a complete record may be filed and a consideration of the case on its merits may be secured.
It seems to us that a rehearing may properly be granted under the extraordinary circumstances of this case, on the authority of Gage v. Schmidt et al., 104 Ill. 106.
The clerk of the trial court, by an oversight in copying the bill of exceptions, failed to transcribe the statement that the record contained all of the evidence. Appellant’s attorney sought an opportunity to assist the clerk in comparing the transcript with the original papers, and the clerk promised him this privilege; but the clerk did not keep this promise, for some reason not clearly disclosed by the affidavit presented with the petition for a rehearing, and the transcript was forwarded to the clerk of this court in the imperfect condition above described. Appellant’s counsel probably learned of this imperfection for the first time when the opinion of this court was filed affirming the judgment of the court below.
The effect of the omission under consideration is far-reaching. The Supreme Court, to which this case might be appealed, could not say whether or not the trial court erred in refusing to instruct the jury to find for appellant, or in giving the instruction asked by appellee, for the reason that the record does not purport to contain all of the evidence, and for anything appearing to the contrary there may have been an abundance of evidence not preserved in the record which justified the rulings of the trial court. If the record is corrected at all, it must be done in this court, and, at this stage of the proceedings, by granting a rehearing of the case. Are the technical rules of law and of this court to be treated as so inflexible—to be regarded as so sacred—as to be crysfcalized into insuperable barriers to the administration of justice? Shall a party, not guilty of negligence, be permitted to suffer because of the mistake of the clerk, while as yet this court has its grasp on the case, even though solely by a petition for -a rehearing ?
There is a rule of this court, heretofore in force, but which will exist in the future in a modified form, whereby it is provided that no rehearing shall be granted in cases which may be taken to the Supreme Court. The judgment in this case is for $1,500, which amount is sufficient to give the Supreme Court jurisdiction. But of what avail would it.be to take this record to the Supreme Court for review ? The right of appeal is valueless, unless the questions involved can be considered by the higher court. The rule above mentioned can not be intended to prevent a rehearing under the circumstances of this case. There must be some elasticity in language even in rules of court. There must be implied exceptions within the spirit of the most inflexible of laws. The People v. Gaulter, 149 Ill. 39. We think that the rule in question does not stand in the way of a rehearing of this case. And so we have granted a rehearing and have permitted a complete transcript of the record to be filed, and the case is now before us for a consideration of the merits of the controversy.
We are satisfied with the views, of the law expressed in our former opinion herein. We still think that appellee’s instruction fairly stated the law from his standpoint, and did not in any manner mislead the jury. As to the want of an allegation of due care on the part of appellee, we hold that such facts are stated in the declaration as show due care sufficiently, in the absence of a special demurrer, and that no demurrer having been interposed, and no motion in arrest having been made, the insufficiency of the declaration in this regard is cured by the verdict. It is not the intention of the law to give a party an advantage of a point like this when presented for the first time in this court, unless the declaration fails to state a cause of action under any sort of reasonable construction. If the averment may be gathered reasonably from the facts stated, or may be fairly read between the lines, the declaration should be sustained.
The question now arises, does the evidence in this record support the verdict % The rules by which a court of review must be governed in determining this question are too well known to the profession to render a statement of them neo essary in this connection. In the light of these rules, we have carefully examined the evidence and have found it sufficient in every essential particular.
It is not necessary that some witness should swear that he saw appellant’s servant thrust one end of the board under the wagon wheel and leave the other end elevated two or three feet above the ground, and in dangerous proximity to a passing train of cars. This fact may be proved by circumstances. When it appears that the wagon was appellant’s and under the control of his servant; that it was loaded with coal and was mired to the hub of one wheel, or perhaps deeper still; that the oak board in question was used by appellant’s servant, and others assisting him, in a vain effort to raise the wagon out of the mud; that two horses and five mules were unable, with their united strength, to extricate the wagon from the mire; that at three o’clock the next morning one end of the board was in the mud under the wagon wheel and the other was elevated two or three feet above the ground, and so close to a passing car as to tear the flesh from the leg of appellant, who was standing on the sand board, where he had the right, as a switchman, to ride; and that an engine was required to pull the board out of the mud—then enough appears to fasten upon appellant a liability for the injury, provided appellee Avas using due care, and this, too, notwithstanding the testimony of appellant’s servant and two others that after they had used the board they left it lying flat upon the ground. The jury Avere justified in rejecting the testimony of these three witnesses on this point, and in finding that appellant’s servant, Avith those who were helping him, thrust the board under the Avagon Avheel, as a solid foundation upon Avhieh to raw the wheel, but Avere unable to extricate the wagon : this manner, and succeeded only in forcing the board so f nto the mud that they had to leave it there during the n'
In our opinion the evidence abundantly suppc the verdict.
The judgment is affirmed.