text:
    Illinois Match Company, Appellee, v. Chicago, Rock, Island & Pacific Railway Company, Appellant.
    Gen. No. 5,177.
    1. Common carriers—what instruments may properly contain limitations upon liability. The statutory inhibition against limitations of liability by a carrier in a receipt does not apply to bills of lading; such limitations may properly be inserted in bills of lading.
    2. Common carriers—what does not effect limitation of liability. While a carrier may restrict its liability by provisions contained in a bill of lading, yet the mere delivery of a bill of lading to a shipper is not sufficient to effect a limitation but in order to relieve itself from liability the carrier is bound to prove the assent of the shipper to such limitation, and in the absence of proof of such assent the presumption is that the shipper relied upon the common law liability of the carrier when delivery was made to the carrier duly consigned, and that there was no assent to any change from the common law liability.
    3. Common carriers—what does not establish assent of shipper to limitations of liability contained in bill of lading. Proof that a • shipper had upon previous occasions received bills of lading containing limitations like those contained in the one in question, does not establish a prima facie case of assent.
    4. Common carriers—what does not establish assent to limitar tions of liability contained in a bill of lading. The acceptance of a shipping ticket by the shipper containing a reference to the conditions of the company’s bill of lading, does not establish an assent to the limitations of liability contained in such bill of lading.
    5. Common carriers—tohat competent to show lacle of assent to limitations of liability contained in the bill of lading. In order to show that the shipper did not assent to limitations of liability contained in, the bill of lading, it is competent for himself and his witnesses to testify that they had never read the bill of lading, that they did not know at the time of receiving it what provisions and contents were contained therein, that they did not have any talk ■ with any agent of the carrier concerning the terms and conditions of the bill of lading and that their attention had never, up to the time of the loss sued for, been called to the conditions and limitations tontained in such bill of lading.
    6. Common carriers—extent of liability defined. In the absence of a special contract assented to by the shipper, a common carrier is an insurer of freight and can only relieve itself from liability for loss by showing that the same was occasioned by the act of God or the public enemy or through some fault of the shipper or by reason of the inherent nature of the goods.
    7. Instructions—when containing. abstract proposition of taw will not reverse. It is not error to give an instruction which correctly states a mere abstract rule of law unless its tendency is to mislead the jury.
    Action in case. Appeal from the Circuit Court of Will county; the Hon. Albert O. Marshall, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Rehearing denied April 13, 1910.
    J. L. O’Donnell, T. F. Donovan and J. A. Bray, for appellant; Winston, Payne, Strawn & Shaw, of counsel.
    Knox & Akin, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

The Illinois Match Company, the appellee, is engaged in the business of manufacturing’ and selling matches in the township of Joliet, in Will county. On June 16, 1904, it delivered to Chicago, Rock Island & Pacific Railway Company, the appellant, 555 cases of one kind and 70 eases of another kind of matches, loaded in a car of appellant railway which appellant had previously furnished for that purpose, which shipment was consigned by appellee to John T. Huner, Our Darling Siding, Queens County, New York. Appellee was manufacturing a special brand of matches called “Our Darling” for Huner. The siding in question was located on the Long Island Railroad. Appellant had obtained the shipments under this contract by assuring appellee that it could deliver said shipments in New York City on the third morning after it received them in Joliet. It charged a higher rate of freight because of the extra risk involved in the transportation of matches over that of ordinary freight. It issued a bill of lading on June 16, 1904, for these matches. This car reached New York City over the tracks of the New York Central & Hudson River Railroad Company between 5:30 and 6:30 a. m. of June 21st and was placed on a certain storage track. In the regular course of transportation it should have next been placed upon a float or dock for transportation across the river to the Long Island Railroad and it would have taken about ten minutes to move the car from said storage track to the float. This, however, was not done, and at eight o ’clock that evening it was still on said storage track, some fourteen or fifteen hours after it. could have been removed therefrom in the ordinary course of business. It is a reasonable inference that it would have reached its destination before . eight o ’clock in the evening if it had been promptly transported. About eight o’clock in the evening smoke was seen issuing from the car. Employes of the New York Central Railroad opened the car, found it full of smoke, found the packages loose at the north end and quite a number of them on fire. They were unable to save the .cargo and it was never delivered. Appellee brought this suit against appellant to recover for said loss, and filed a declaration containing two original and three additional counts in which the liability of appellant was stated in various ways. Defendant pleaded not guilty. There was a jury trial and a verdict and a judgment for appellee for $1,404.71, which was the exact amount of the price at which the matches were to be sold to Huner, less the freight charges, which had not been paid. Defendant below prosecutes this appeal from said judgment.

The bill of lading issued by appellant for said matches, which was also appellee’s receipt from appellant for the goods, contained provisions to the effect that appellant’s liability should cease upon its delivery of the goods to the next carrier; that it assumed no other responsibility for the safe carriage of the goods than should be incurred on its own road; and that the legal remedy of appellee for all loss and damage occurring in the transit of the packages should only be against the particular carrier in whose custody the packages were at the time of loss. Appellant proved that its line terminated in Chicago and that this loss occurred on the line of the New York Central, a connecting carrier, and it argues that under this bill of lading it is not responsible for the loss. By chapter 27 of the Revised Statutes it is enacted that whenever property is received by a common carrier to be transported from one place to another within or without the state, it shall not be lawful for such carrier to limit its common law liability to safely deliver such property at the place to which the same is to be transported, by any stipulation or limitation expressed in the receipt given for such property. To the same effect is section 33 of the Act in relation to fencing and operating railroads, embodied in chapter 114 of. the Revised Statutes. This' instrument was not only a receipt but also a bill of lading, and the statutory restriction does not apply to a bill of lading. We find it unnecessary to examine the many cases cited by counsel for appellant from other jurisdictions and the early cases in this state, because in our opinion the law governing this case has been fully discussed in recent decisions of our Supreme Court. Thus, it was held in C. & N. W. Ry. Co. v. Calumet Stock Farm, 194 Ill. 9, that where a contract limiting the liability of the carrier is contained in a bill of lading which is both a receipt and a contract, the burden is on the carrier to show that the restrictions of the common law liability were assented, to by the consignor, and that the mere receiving of the bill of lading without actual notice of the restrictions therein contained does not amount to an assent thereto, and that whether the consignor did so assent is a question of fact. In C. C. C. & St. L. Ry. Co. v. Patton, 203 Ill. 376, where the bill of lading seems to have been signed by the shipper, who was the plaintiff, and where it was contended that because the shipper signed the bill of lading he therefore was bound thereby, it was held that the burden was on the carrier to show that the provisions of the contract which limited the liability of the carrier were assented to by the consignor, and that, in the absence of any evidence, the presumption was that he did not assent to those terms. In Wabash R. R. Co. v. Thomas, 222 Ill. 337, where the bill of lading contained like provisions exempting the carrier from responsibility for loss occurring beyond its own lines, these principles were again stated and enforced, with a reference to many earlier Illinois cases. It follows therefore that while appellant could restrict its liability by provisions of this character in its bill of lading, yet the mere delivery of a bill of lading to appellee' was not sufficient, but in order to relieve itself from liability it was bound to procure the assent of appellee thereto, and in the absence of such proof, the presumption would be that the shipper relied upon the common law liability of the carrier when it delivered the goods to it duly consigned, and that it did not assent to any change from that common law liability. While appellant had the burden of proving appellee’s consent, it produced no proof on that subject, except the fact that appellant had frequently before that date delivered to appellee .other bills of lading containing the same provision, from which appellant argues that appellee must have known the conditions of this bill of lading. Under the authorities above referred to this proof was. insufficient to make even a prima facie case of the consent of the consignor to these limitations on the liability of the carrier. But appellee in rebuttal proved by its president, secretary, treasurer and manager, by those who shipped this carload of goods and received this bill of lading, that they had no knowledge till long after the shipping of these goods that appellant’s bill of lading contained these provisions exempting it from liability for loss occurring beyond its own lines.

Appellant contends that in making the proof last mentioned appellee’s witnesses were permitted to state conclusions and that this was error. In the main these criticisms are not justified by the state of the record. The witnesses referred to were permitted to testify whether they had ever read the bill of lading; whether they at that time knew v#hat provisions and conditions were contained in the printed part of the bill of lading; whether they had any talk with any agent of appellant concerning the terms and conditions .of the bill of lading; and whether their attention had ever, up to the time of the loss, been called to the conditions and limitations in the bill of lading. All these and such like inquiries and the answers thereto were proper and they showed that none of these officers and agents of appellee had ever read the bill of lading, or had any knowledge of its printed part where these limitations were set out in fine print, and that they had no conversation with any agent of appellant on the subject of these limitations. If the single question to a single witness, whether he ever assented or agreed. with appellant’s agents that appellee should be bound by the terms and conditions in the bill of lading, be regarded as improperly calling for a conclusion, nevertheless appellant could not be injured by the answer, because that conclusion was the only one that could be drawn from the evidence already given. We therefore conclude that the jury were warranted in finding that the proof did not show that appellee had consented to these limitations upon its liability and, therefore, that appellant was subject to the common law liability of a common carrier, which is that of an insurer.

Appellee argues that in view of the shipping ticket which appellee delivered to appellant with the goods, and which described, not a carload lot, but a given number of packages, to be delivered to a certain destination, and of the fact that the bill of lading did not specify any other carrier over whose lines the goods were to be transported, the restrictions contained in the bill of lading could not in any event apply to these goods, but that even if the proofs had shown that these limitations liad been assented to by appellee, still the bill of lading bound appellant to deliver the goods to the consignee at the destination indicated, and that if appellant delivered the goods to other carriers, it made them its agents to deliver the goods at the destination. In view of our conclusion already stated, we think it unnecessary to determine the correctness of this position.

In the absence of a special contract assented to by the consignor, the common carrier is an insurer of freight, and can only relieve itself from liability for loss by showing that the loss was occasioned by the act of God or the public enemy, or through some fault of the shipper, or by reason of the inherent nature of the goods. This loss was not occasioned by the act of God or of a public enemy. Appellant contends that it must have been due to some fault of the shipper or to the inherent nature of the goods. It would unduly extend this opinion to describe in detail the manner in which these boxes of matches were packed in this car, as shown by appellee’s proofs. We think it sufficient to say that the proof shows that they were packed with very great care, tightly, in practically air tight boxes, and that the boxes were packed so tightly in the car that there was substantially no play allowed and no chance for the boxes to be removed from the position in the car where they were placed, except by some external violence; that they could not ignite until the packages were broken open and the matches were given access to the external air; and that these matches were packed in the safest way known to manufacturers and shippers of such articles. Appellant introduced the depositions of several men who worked in the New York Central yards in New York city that day, and who testified that no other car came near the car in question during the fifteen hours that it stood upon that side track and that nothing known to .them happened to the car. Appellant proved nothing as to what happened to this car while it was on its own line nor after it left its line and before it reached New York city, and a consideration of the evidence of the employes of the New York Central leaves it extremely doubtful whether they knew all about what happened to .that car during all of the fifteen hours when it stood upon that side track. We are satisfied that the jury were warranted in finding from the evidence that the loss was not occasioned by the fault of the shipper, nor by the inherent nature of the goods, but that at some time recently before the fire something had happened to this car to dislodge these cases from the position in which they were packed and to expose the matches to the air and to ignite them, and that the loss must be borne by the carrier.

Complaint is made of the instructions given at the request of appellee. Several of these stated abstract propositions of law only and might have been refused for that reason. But they statqd correctly the rules of law prevailing in this state which govern the questions at issue in this case. It is not error to give an instruction which correctly states a mere abstract rule of law, unless its tendency is to mislead the jury. Betting v. Hobbett, 142 Ill. 72; C. & A. R. R. Co. v. City of Pontiac, 169 Ill. 155-172; and Chicago City Ry. Co. v. Anderson, 193 Ill. 9. We are of the opinion that the court properly refused instructions Nos. 24, 25 and 26, requested by appellant, upon the authorities already cited. No. 26 sought to defeat appellee by reason of certain language in the shipping ticket. The shipping ticket was on a blank form, printed by a firm in Chicago. It gave the name of the consignor and consignee and place of consignment, and directed the goods to be delivered to the consignee at that place “as per conditions of company’s bill of lading.” These words were in the printed form. Appellant contends that by issuing that ticket, appellee assented to the limitations contained in the bill of lading after-wards delivered to it by appellant. We are of opinion that this position is untenable, and that the instruction was properly refused for that reason and for other reasons appearing on its face.

We find no reversible error in the record and the judgment is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Dibell

license: Public Domain

text:
    Steele-Wedeles Company, Appellant, v. Shoodoc Pond Packing Company, Appellee.
    Gen. No. 5,185.
    1. Pleading—what not part of declaration. The copy of an instrument filed with a declaration is no part thereof.
    2. Pleading—effect of allegations under videlicet. To allege a date under a videlicet is not to mate a positive averment as to time and such an allegation is insufficient where a positive averment is required.
    3. Attachments—when original does not lie. An original attachment will not lie to recover unliquidated damages even though an action of assumpsit is brought and may be maintained therefor.
    4. Attachments—what affidavit should show in action dy assignee. In order to maintain an attachment predicated upon a claim acquired by assignment, the affidavit in attachment should positively show that the claim sued on was assigned to the plaintiff subsequent to section 18 of the Practice Act of 1907 going into effect.
    5. Assignments—chases in action prior to Practice Act of 1907. Prior to the enactment of section 18 of the Practice Act of 1907 a claim for brokerage commissions. was not assignable at common law so that the assignee could sue and recover therefor in his own name.
    6. Damages—when unliquidated. If the question of damages is dependent upon the determination of the market value of merchandise, such damages, are unliquidated, where such question of market value is one as to which opinions may reasonably differ.
    Assumpsit. Appeal from the Circuit Court of Peoria county; the Hon. N. E. Wobthington, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.

      Mayer, Meyer & Austrian and Page & Wead, for appellant.
    Jay T. Hunter, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Appellant, the Steele-Wedeles Company, an Hlinois corporation, sued out a writ of attachment against the Shoodoc Pond Packing Company, a Maine corporation, appellee, in the Circuit Court of Peoria county, and garnisheed a party in that county. It filed a declaration in assumpsit containing a first special count upon one alleged cause of action, a second special count upon another alleged cause of action and the common counts. Appellee appeared specially and moved to quash the attachment writ, and filed a "written motion specifying various grounds upon which it was based. Thereupon appellant, by leave of court, filed an amended affidavit in attachment. Appellee again moved to quash the writ and specified in detail its reasons in a written motion. That motion was heard and granted. The attachment writ was quashed and appellee had judgment against appellant for costs. Plaintiff below appeals from that judgment.

Attached to the declaration was a copy of the instrument declared upon in the first count. Both parties have argued the case in part upon the terms of that contract. The copy of an instrument filed with a declaration is no part of the declaration. But not only have the parties argued the case as if it were a part of the declaration, but also appellant in its bill of exceptions has inserted said contract and stated therein that it is a copy of the contract sued on. Moreover, if we should reverse and remand the cause for a trial it must ultimately come before us upon the question whether, in an action by appellant on this contract, an attachment will lie. We therefore conclude it proper to consider the contract, which is only partially stated in the. first special count of the declaration. The contract shows that appellee is a packer of blueberries at Machias, Maine, and by that contract it sold to appellant 600 cases of one kind of blueberries at a certain stated price, and 150 cases of another kind of blueberries at another stated price, from the packing of the factories for the season of 1907, upon certain terms as to times of payment, the delivery to be free on board of cars at Columbia Falls as soon as packed. The first special count set up that part of the contract just stated, and alleged that the time for the delivery of the blueberries had elapsed and appellant had been ready to receive and pay for them, but that appellee did not deliver them or any part thereof at Columbia Falls or elsewhere, but refused so to do, and that thereby appellant had been deprived of great gains and profits which would have accrued to it by the delivery of said blueberries. In the first special count therefore appellant sues for damages for failure to deliver goods pursuant to contract. The first question therefore is whether, under our statute, an attachment writ will lie for that cause of action.

The first section of the Attachment Act uses the terms “creditor,” “debtor” and “indebtedness” and only allows an attachment for an indebtedness. The second section requires the attaching creditor to file an affidavit setting forth the nature and amount of the indebtedness. While the facts in Capes v. Burgess, 135 Ill. 61, were somewhat different from those in the case before us, yet the reasoning there employed is applicable. We are of opinion that it must be regarded as settled that in this state an original attachment will' not lie to recover unliquidated damages, even though an action of assumpsit is brought and may be maintained therefor. Appellant calls our attention to the fact that under section 31 of the Attachment Act, an attachment in aid will not lie in actions of trespass and case, wherein the damages are not liquidated; and that that provision for an attachment in aid in an action of trespass was in force in this state as early as 1833. Revised Statutes of 1833, page 94, section 30 of Attachment Act; Revised Statutes of 1845, page 70, section 30 of Attachment Act. This, however, only applies to attachments in aid and not to original attachments, as held in Moore v. Hamilton, 2 Gilm. 429, 432.

Are the damages sought to be recovered under this special count liquidated or unliquidated? This question was decided, without much discussion, in Higbie v. Rust, 211 Ill. 333. In that case, a suit to recover for the value of certain merchandise delivered, the defendant sought to set-off the damages suffered by him by reason of the failure of the plaintiff to deliver certain other merchandise under an alleged contract between the parties. Plaintiff had failed to deliver to defendant 3,500 wooden pails which defendant claimed plaintiff had contracted to deliver to him and by which failure defendant claimed he was* damaged. The law is that unliquidated damages cannot be set-off in an action of assumpsit where they result from the violation of an entirely distinct contract from that sued upon. The court held that the contract concerning said 3,500 wooden pails was entirely distinct from the two contracts upon which the plaintiff sued. The court held that defendant was seeking to set off unliquidated damages, and therefore denied his claim. Of course, the law fixes the rules which shall govern the ascertainment of the damages for failure to deliver wooden pails bargained for at a certain price, just as completely as it fixes the rule by which the damages shall be determined for a failure to deliver a specified number of cases of blueberries at a given price. If the damages were unliquidated in that case, they are unliquidated in this. We regard that case as decisive of the question here presented. In 1 Chitty’s Pleading, 571, 572, it is said that the claim of a party for not delivering goods according to contract is a claim for unliquidated damages. No doubt it is true that the damages are liquidated wherever they can be determined from the contract itself, or from the contract and the rules of law applicable thereto. We think it obvious that other proof than, that must be introduced to make a case here for plaintiff. The delivery was to be “as soon as packed” and it was to be “from the packing of factories of the season of 1907. ’ ’ It would be necessary for appellant to prove when packing was completed at appellee’s factories, or, if it did not pack at all because of its own fault, then it would be- necessary to show when the packing should have been completed in the usual course of that business in Maine. It might very easily .be that witnesses would not agree on that subject. It would then be necessary to prove what the value of the goods was at Columbia Falls at the time when the packing was completed. It does not necessarily follow that there is one fixed market price for blueberries at that place. There might easily be a difference of opinion as to what the market price was at that time and place. These would be questions of fact to be determined by a jury. The language on page 67 of Capes v. Burgess, supra, is very applicable to these considerations. It cannot be said that appellee owes a debt to appellant for those damages, which he can discharge by payment, until this uncertain.amount has been fixed by the jury. But there is another feature in this contract which we think is material upon this question. The contract also provides: “In case of partial failure of the crop of blueberries, occasioned by circumstances of nature beyond control, it is understood the packer does not incur liability beyond a pro rata delivery of his entire pack with all other orders, if any taken.” Appellant did not set out this part of the contract in its first special count. We will assume that it was not obliged to plead that provision. Nevertheless, we are of opinion that it is to be considered in determining whether the damages suffered by appellant by' reason of the failure of appellee to deliver the blueberries pursuant ’to contract are liquidated or unliquidated. It will not do to say that the damages are liquidated and attachment will lie if appellee does not claim that there was a partial failure of the crop, but that the damages are unliquidated and attachment will not lie if appellee should set up that defense. If the contract itself is such that the damages may be unliquidated, then attachment will not lie. If appellee should set up in defense the partial failure of the crop, then it will be necessary to hear proofs upon the questions whether in fact there was a partial failure of the crop and, if so, whether that failure was occasioned by circumstances beyond control, and, if so, what was the total amount of all orders which appellee had taken for the delivery of blueberries for the packing of factories for the season of 1907, and also the percentage of failure of the crop, and thus to ascertain to how many cases appellant would have become entitled under a prorata delivery. It is manifest that damages to be ascertained by such evidence are unliquidated. We are of opinion that an original attachment will not lie for the breach of this contract set up in the first special count.

The second special count alleged that appellee became indebted to John L. Flannery, Jr., in a certain amount for a certain brokerage commission upon certain sales of blueberries made by Flannery for appellee and that Flannery sold and assigned his bill for said commissions to appellant; and it sought to recover the amount of said commissions in this action. • Such an account was not assignable, and the assignee could not sue and recover therefor in his own name, prior to the enactment of section 18 of the Practice Act of 1907. That section requires that such an assignee, suing thereon in his own name, shall in his pleading on oath, or by affidavit where pleading is not required, state certain facts, and among these, when he acquired the title to this non-negotiable chose in action. Said special count did say that the bill was assigned by Flannery to appellant “on, to wit, the 11th day of August, A. D. 1908.” The allegation of that date under a videlicet was not a positive averment as to the time, and any other time could be proved under it. Rose v. Mutual Life Ins. Co., 144 Ill. App. 434, and cases there cited. But, even if that averment had been sufficient, the affidavit attached to the declaration did not allege that the matters averred in the declaration were true, nor did it state when this account was assigned to appellant. Neither of the affidavits for attachment stated when this account was assigned to appellant, although the failure to state when appellant acquired the title to the bill was expressly relied upon in each of the written motions to quash the writ. With that point distinctly made in writing, appellant did not choose to state the date under oath as the statute required. Appellant therefore has not shown that it has a cause of action on said account for commissions upon which it can maintain an action in its own name.

The judgment is therefore affirmed.

Affirmed.

ERRATUM (App. 153.) Page 578, 3rd Line from Bottom of Page, Strike out the word “not.”

      ERRATUM (App. 153.) Page 578, 3rd Line from Bottom of Page, Strike out the word “not.”


text:
    Don Carlos Kepler, Appellee, v. Applegate & Lewis Coal Company, Appellant.
    Gen. No. 5,196.
    1. Mines and minees act—section 21 (5) construed. Even prior to the amendment of 1907 places of refuge were required to be provided on all hauling roads and gangways regardless of whether men had to pass thereon to and from their work.
    2. Statutes—power of legislature to construe. Where a statute is unambiguous and rights have accrued under it the legislature may not afterwards place upon that statute a construction which will deprive a party of rights already vested.
    3. Instructions—what essential to review error in refusing. In order to take advantage of the refusal of an instruction the refused instruction must be set out in the bill of exceptions.
    Action in case for personal injuries. Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Putebbaugh, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Sheen & Miller, for appellant; James A. Cameron, of counsel.
    Joseph A. Weil and Frank J. Quinn, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Appellant operates a coal mine. Appellee was a mule- driver therein on September 13, 1906, in the employ of appellant. Part of his duty was to drive a mule hauling two loaded cars of coal from the east entry south along the main entry towards the shaft to a point known as the parting track. In that space the descent was sharp to the south. On that day he came to the top of the incline driving a mule hauling two cars of coal. At the top of the incline the mine inspector spragged the wheels. Appellee stood in the usual position for that ride, with one foot on a bar on the front end of the car and the other on the tail chain and with one hand on top of the car and the other on the hip of the mule, and in that position started the mule and cars down the incline. When within about sixty feet of the parting track, the mule stumbled, the tail chain became unhooked, and appellee was thrown. He went under the car with his head to the rear. When taken out almost immediately afterwards, his. head lay between the two cars with his feet further south. He brought this suit to recover damages for the injuries thereby sustained.

There were declarations and demurrers and amendments, the withdrawal of a common law count, and the case went to the jury on certain counts of the second amended declaration, which charged that the injury was occasioned by the wilful failure of appellant to maintain places of refuge as required by law along said main entry, and on a plea of not guilty. Appellee had a verdict and a judgment for $765, from which defendant below appeals. Appellant insists that we shall not remand the cause, and that if we cannot find sufficient grounds for reversing without remanding, we shall affirm the judgment.

The defenses are (1) that the statute did not require places of refuge in that entry; (2) that the absence of places of refuge was not the cause of appellee’s injury; and (3) that appellant had places of refuge there as required by statute.

Section 21 (b) of the Mines and Mining Act of 1899, in force when this accident happened, is as follows: ‘ On all hauling roads or gangways on which the hauling is done by draft animals, or gangways whereon men have to pass to and from their work, places of refuge must be cut in the side-wall at least two and a half feet deep, and not more than- twenty yards apart; but such places shall not be required in entries from which rooms are driven at regular intervals not exceeding twenty yards, and wherever there is a clear space of two and one-half: feet between the car and the rib, such space shall be deemed sufficient for the safe passage of men. All places of refuge must be kept clear of obstructions and no material shall be stored nor be allowed to accumulate therein. ’ ’ Appellant urged that this should be interpreted to mean that the place's of refuge must be provided on all hauling roads on which hauling is done by draft animals and whereon men have to pass to and from their work; and as this was not a way whereon men had to pass to and from their work, therefore places of refuge were not required, although it was a hauling road on which the hauling was done by draft animals. To so hold, we must change the word “or” in the statute to “and”. This we do not feel authorized to do, without any circumstance requiring such construction. In 1907, after this accident occurred, said section 21 (b) was amended so that the first part read as follows: ‘ ‘ On all hauling roads or gangways on which the hauling is done by draft animals, or gangways whereon men are obliged to be in the performance of their duties or have to pass to and from their work, places of refuge must be cut,” etc. The words “whereon men are obliged to be in the performance of their duties” are added. It is argued that this furnishes a legislative construction that prior to 1907 said section 21 (b) did not require places of refuge at such a place as this entry, where men did not pass to and from their work, but whereon drivers were obliged to be in the performance of their duties. Where a statute is unambiguous and rights have accrued under it, the legislature may not afterwards place upon that statute a construction which will deprive a party of rights already vested. But the passage of this amendment may as well be attributed to a desire on the part of the legislature to make the statute so plain for the protection of such men as drivers at such a place that the defense here interposed could not be thought tenable by any one. We therefore hold the statute applicable to this main entry.

' Appellee testified that when the chain came unhooked, he got to his feet on the ground in front of the car and ran as hard as he could for about twenty yards, looking for a place of refuge into which he might escape and avoid the car; that then the car overtook him and knocked him down and ran over him. Appellant introduced proof tending to show that when the tail chain unhooked appellee at once fell to the ground and the car ran over him. If that proof by appellant is true, then the absence of places of refuge did not contribute to this accident, and the presence of places of refuge would not have averted it. Appellant contends that the proof is so overwhelming that appellee went under the car at once that we ought to reverse the judgment and refuse to remand the cause. It is clear that the trial judge, on a motion to direct a verdict, could not decide for appellant on this conflicting testimony, but was bound to submit to the jury the question whether appellee had given upon the witness stand the true account of the injury. We have considered the argument of appellant’s counsel on this subject and are of the opinion that it cannot be said that the proof is so clear that appellee’s testimony is not true that we can disregard it and find the facts to the contrary by a final judgment here. Therefore, even if we should believe that there was a decided preponderance in favor of appellant’s theory, we could do no more than reverse the judgment and remand the cause for another trial, and that appellant has expressly requested us not to do in any event. As appellant asks us not to remand in any event, we are not at liberty to reverse on that ground.

Appellant contends that there were places of refuge along this entry way which complied with the act of 1899 above quoted. The evidence is conflicting as to whether there were places of refuge of the width required within the distances fixed by the statute, but there appears to be a clear preponderance of the evidence that whatever space there may have been between the cars and the rib, it was not kept clear of obstructions, but that much dirt and other material was piled up in said space, so that any one seeking a refuge from an approaching car would be obliged to climb up and crawl into a little shelf towards the upper part of the five feet of room between the floor and the roof.

It is not contended that the trial judge committed any error in his rulings upon the evidence or the instructions, except that it is claimed that the court should have given an instruction directing a verdict for appellant. Not only was the court required to refuse such an instruction if one had been asked, but although the record shows that some instruction on that subject was asked by defendant, both at the close of plaintiff’s evidence and at the close of all the evidence, yet the instruction so asked is not set out in the bill of exceptions. In order to take advantage of the refusal of an instruction, the refused instruction must be set out in the bill of exceptions. If it is not so set out in the bill of exceptions, it will be presumed that it was properly refused. It is not contended that the damages are excessive and it is clear that they are very meagre for the injuries sustained. We find no such state of the proofs as would justify us in refusing to remand the cause. The judgment is therefore affirmed.

Affirmed.


text:
    Tina Worthing, Appellee, v. L. N. Hall, Executor, Appellant.
    Gen. No. 5,199.
    1. Administration op estates—when jury trial not matter of right. In determining the question whether a legacy is a charge against an estate and shall be paid hy the executor thereof, a jury trial cannot be demanded as a matter of right.
    2. Administration oe estates—when a verdict merely advisory. If in the course of the administration of an estate a jury trial is had, not as a matter of right, the verdict rendered is advisory only. It is like any other verdict in a purely equitable proceeding and the court may completely ignore such verdict and enter such an order as equity may require, though it he very different from the verdict rendered by the jury. In consequence, the question whether the court gave improper or refused proper instructions upon such a jury trial is immaterial on review.
    3. Evidence—when objections to competency waived. A party cannot offer the deposition of an adverse party, or parts of such deposition, and then urge objections to any portion thereof offered hy him, nor can objections he urged which may he noted in such deposition if the portions to which such objections referred were not read to the jury.
    4. Evidence—when secondary incompetent. The contents of letters cannot be proven by parol if no effort had been made to obtain the production of the original letters.
    Objections to the executor’s report. Appeal from the Circuit Court of Kendall county; Hon. Mazzini Slusser, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.

      W. M. Mercer, for appellant.
    John Fitzgerald and Sears & Solfisburg, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Henry Minard and Tirzah Minard, his wife, residents of Kendall county, made a joint will on the first day of December, 1883, to which will several codicils were afterwards added, the last codicil being dated November 8,1887. The third clause of this will, which is the only part involved in this case, reads as follows:

“Third. To Tina Worthing of Kendall County, Illinois,—a niece of the said Tirzah Minard—the sum of One Thousand ($1000.00) Dollars in money and the half of our household goods and wearing apparel.”

Henry Minard, one of the testators, died in 1888. Tirzah Minard died in February, 1904. The joint will was probated in the County Court of Kendall county, the appellant was appointed executor, and in due course of time filed his final report, setting out that all of the legatees under the will have been paid and the legacies discharged before the death of Tirzah Minard. To this report Tina Worthing, the appellee, filed exceptions in the County Court, denying that any part of said legacy to her had been paid, either before or after the death of said Tirzah Minard. Her exceptions to the final report of the executor were overruled by the County Court, and appellee prayed and perfected an appeal to the Circuit Court. Upon a trial in that court, before a jury, of the issue whether the legacy to Tina Worthing had been paid, a verdict was returned finding for appellee in the sum of $1,049.31, the amount of the legacy with interest from the date of the approval of the final report except as to said legacy and one other, motions for a new trial and in arrest of judgment were overruled, and judgment was entered in favor of appellee, finding the legacy unpaid and ordering the executor to pay' Tina Worthing $1,046.31, the amount of the verdict, less $3 interest remitted, from which judgment the executor appeals to this court.

Appellant claims that the legacy to appellee, mentioned in said third clause of this will, was paid by the said Tirzah Minard in her lifetime; that Tirzah Minard had and executed a general and definite scheme for satisfying all of the legacies and for carrying out all of the provisions of her will in her lifetime; and that the trial court erred in rejecting certain testimony offered by appellant, and also erred in refusing to give certain instructions to the jury, asked on behalf of appellant, and in giving certain instructions requested by appellee.

The proofs in this cause showed that the executor had in his possession, after paying all other claims, legacies and costs, a considerable sum of money more than was necessary to pay the legacy to appellee, so that the only question to be determined here is whether appellee was entitled to the legacy. This was not a claim against the estate, such as is provided for in section 60 of the Administration Act, and neither party had a right to a jury. The. settlement of the accounts of executors and administrators proceeds upon equitable principles, and while the court may impanel a jury to try a question of fact, yet the court is not bound by the verdict. It is advisory only, like any other verdict in a purely equitable proceeding, and the court may completely ignore the verdict and enter such an order as equity may require, though it be very different from the verdict returned by the jury. Therefore the question whether the court gave improper or refused proper instructions to the jury is immaterial in this case. Furthermore, if there was sufficient competent evidence to sustain the finding, the rulings of the court upon the evidence are immaterial, unless the court kept out some competent evidence. Schroeder v. Harvey, 75 Ill. 638; Palmer v. Meriden Brittannia Co., 188 Ill. 508; Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61.

Appellee lived in California and seems not to have been present at the trial. Her deposition was taken in her behalf in California and filed in the case. At the trial appellee’s attorney assumed the affirmative to sustain the exceptions to the final report, and introduced in evidence the will and its codicils and the order of probate, and proved by the executor that the debts were paid and that he had on hand more than sufficient funds to pay this legacy. Appellee then rested.' Appellant then offered in evidence the deposition of appellee, which largely related to matters occurring in the lifetime of the testatrix. Appellee was not a competent witness in her own behalf on these subjects, but she was a competent witness for appellant if he chosé to make her his witness. By offering her deposition he made it competent. The deposition had been taken on oral interrogatories, and it shows objections by appellant to various questions and answers. As the deposition is given in the bill of exceptions, some of these objections by appellant appear to have been overruled and an exception by appellant preserved. We do not see how appellant could offer a question and its answer and at the same time object to it and except to a ruling upon it. If there was anything in the deposition which appellant did not wish to offer, no ruling of the court compelled him to offer it. Appellee did not offer any part of the deposition. The position was not taken by the court or by appellee that appellant must offer the whole deposition. No part of it went to the jury except what appellant offered and read. No question therefore is saved by these exceptions by appellant to what he himself offered. This deposition and the documentary evidence contain substantially all the material proof in this case.

When the will was executed the testatrix and her husband and appellee, whose full name is Chastina Worthing, all lived in Kendall county, in this state. Afterwards appellee removed to Bedlands, California, and had a home there. The second year after the death of her husband, Mrs. Minard went to California and lived with appellee for two years. While so residing with appellee, Mrs. Minard was poisoned by the bite of a black spider and became suddenly and dangerously ill in consequence thereof. Appellee took prompt and vigorous action before competent medical assistance could be obtained, and the physicians after-wards assured Mrs. Minard that she would have died but for .the exertions of appellee. Appellee cared for Mrs. Minard during that illness. At some time about the middle of that visit, but whether before or after this illness is not clearly shown, though apparently it was afterwards, Mrs. Minard handed to appellee $1,000 and at her request appellee signed the following document:

“Bedland, Calif., June 1st, 1891. I promise to pay Tirzah Minard interest on One Thousand Dollars at 7% during her natural life and if I care for her in her death, it, the thousand dollars, shall be mine aside from what is willed Chastina Worthing in Henry and Tirzah Minard’s will.
Chastina Worthing.”

Mrs. Minard had apparently gone to California with the intention of remaining there the rest of her life, but afterwards her sister, the mother of appellee, died and Mrs. Minard thereupon became desirous of returning to Illinois while she was alive, as she desired to be buried in Kendall county by the side of her husband. WTien she determined to return to this state appellee offered to return with her and to take care of her, but Mrs. Minard declined the offer because of appellee’s ill health. After Mrs. Minard had returned to Illinois appellee wrote to her offering to come to Illinois and take care of her, but Mrs. Minard replied that appellee’s health was too poor. The proof is that this $1,000 which Mrs. Minard handed to appellee on June 1, 1891, was the only money which Mrs. Minard paid to appellee during the two years in which Mrs. Minard made her home with appellee. Mrs. Minard therefore did not pay her board or other expenses, nor pay for the care which appellee gave her during her serious illness, except as said payment may have been covered by the $1,000. Appellee paid the interest to Mrs. Minard upon this instrument at 7% for a time, and afterwards Mrs. Minard reduced the interest to 5% and appellee continued to pay the interest at that rate during the rest of Mrs. Minard’s life. The deposition did not show clearly all that induced Mrs. Minard to hand appellee $1,000 and to take this instrument from her. But appellee testified that she considered she ought to have more (meaning apparently more than other nephews and nieces who were legatees), because of what she had done for Mrs. Minard, and that she understood this $1,000 to be a gift to appellee because of what appellee had done for Mrs. Minard. Soon after Mrs. Minard had returned to Illinois she drew and signed and sent to appellee the following instrument:

“Due Tina Worthing one thousand dollars at the date of my demise, and I direct my executor to pay said Tina Worthing said sum of One Thousand dollars out of the proceeds of my estate as soon after my demise as it conveniently can be done. Dated at Oswego, 111., this 4 day of October, A. D. 1892.
Tirzah Minard. (Seal).
In presence of Mary Gaylord.”

Under date of June 28, 1893, Mrs. Minard wrote appellee a letter relating in part to her property affairs, in which she said among other things: “have given Nellie, Mary, Eugene, Henry, the same as you last fall. I gave John a note of $1,000. He directly took counsel to see if he could collect it from the estate. He does not like the manner I distributed my property; thinks I should not give it to that preacher factory. He and Mary both treat me with about the same attention they would a chinaman.” Under date of August 21, 1894, Mrs. Minard wrote some directions to “Whoever attends to the distribution of my property” in which she gave various directions about her property, and among other things said:' “I have given notes to the following names: $1,000 each Henry Eugene Minard, C. C. Collins, Nellie Brainard, Mary Murray, Chastina Worthing. I also given notes of $500 to each of these names H. M. Tenney, T. C. Richards, Lulu Mining, Cecillia Williams.” Appellant called several witnesses residing in Illinois, but little or nothing was proved by them material to the question here involved.

Do these documents show that the legacy to appellee was paid by Mrs. Minard in her lifetime? Under the proof the court was warranted in finding that Mrs. Minard handed appellee $1,000 on June 1, 1891, because of the support and care she had received from appellee and expected to receive from appellee in her home, and that she then expected that appellee would care for her in her death. The document expressly states that if appellee did' care for. her in her death, that $1,000 should belong to appellee, besides what was willed to appellee in the joint will of Mrs. Minard and her husband. Appellee did all that she could do to fulfill her part of that contract. She paid the interest to Mrs. Minard and Mrs. Minard received it from her till Mrs. Minard’s death. She offered to come to Illinois with her and care for her. After Mrs. Minard had returned to Illinois she offered to move to Illinois and take care of her. Mrs. Minard declined both offers, giving as her reason the state of appellee’s health. By declining to let appellee perform that part of the contract, Mrs. Minard absolved appellee from it. If that $1,000 is held to be a payment of this legacy, it must be so held against the express language of the document and against the evident intention of the parties. The instrument which Mrs. Minard drew on October 4, 1892, soon after her return to Hlinois, and sent to appellee, we think justifies the conclusion that Mrs. Minard feared that her refusal of appellee’s offers to come to Illinois and take care of Mrs. Minard might be taken by some one tornean that because that part of the contract of June 1, 1891, would not be carried out in full, appellee would have to pay that $1,000 or in other words would lose her legacy, and that Mrs. Minard designed by that last document to prevent any such conclusion; Certainly it rebuts any possible inference that she believed that she had paid the legacy and that appellee should receive nothing further from her estate. The letter of June 28, 1893, and the directions in the paper of August 21, 1894, indicate that she had given like papers to other nephews and nieces. But it does not appear that she had ever given to any of them a sum of money accompanied with such an instrument as that which she took from appellee on June 1, 1891. What she really did for her other nephews and nieces, and what, if any, financial relations she had with them, does- not appear, and is not material. It does appear from her conversations that she had some notion of paying off her legacies in her lifetime, but we do not think that the court would be justified in holding that the transaction of June 1, 1891, was intended by Mrs. Minard as a payment of that legacy when the contrary is plainly expressed in the paper which Mrs. Minard prepared and appellee signed.

Appellant called the witness, Hester A. Miller, who, as a deaconness of the Methodist Church, was sent to take care of Mrs. Minard the latter part of her life, certain societies of that church being beneficiaries under the will. She testified that she had frequent talks with Mrs. Minard about her making her home with appellee. She was asked what Mrs. Minard said, and the court sustained an objection to the question and this is assigned as error. The witness was asked to repeat numerous conversations in a single answer, without anything to indicate that the answer would have any relation to any matter in issue in this case. If Mrs. Minard made any statement that bore any relation to this legacy or to her purpose in handing $1,000 to appellee, the attention of the witness should have been directed to that particular conversation and subject-matter. There is nothing in this record to indicate that the answer would have been material or beneficial to appellant. Miss Miller testified that while she resided with Mrs. Minard she corresponded with appellee at Mrs. Minard’s request when Mrs. Minard was too sick to write; that she did not keep copies of the letters which she wrote and that she burned those which she received, and that she knew the substance of their contents. She was then asked to state that substance, and the court sustained an objection to that question. We think the court ruled correctly. Whatever letters she wrote appellee were not proved to have been destroyed. Appellee had been examined concerning letters written by Mrs. Minard, but not as to letters written to her by Miss Miller. No notice was given appellee to produce the letters written her by Miss Miller. In the giving of her deposition appellee presented for the inspection of appellant’s counsel all letters from Mrs. Minard which she could find, and he examined them and introduced in evidence one or two of those letters. There was no proof that he introduced all of them. It may be that the desired letters from Miss Miller would have been produced if due notice had been given. The question did not call for the substance of the letters written by Miss Miller separate from the others, but it was one general request for the substance of all the letters. Miss Miller did not claim to know how many letters she had written or received, nor when any of them were written or received, nor to be able to distinguish one letter from another. We are of opinion it would have been error to permit her to give her general recollection of the substance of the entire correspondence, without any notice to appellee to produce it.

Complaint is made that the court refused to permit appellant’s witness, Dr. Van Deventer, to state the substance of what Mrs. Minard said to him about her residence in California. There was nothing to show that the answer would have been material to anything in the case. The court properly refused to permit the same witness to state the substance of a letter which he wrote to appellee, no notice having been given appellee to produce the original.

Appellee was not asked concerning that letter in her deposition.

We find no reversible error in the record and the judgment is therefore affirmed.

Affirmed.


text:
    H. G. Cook, Administrator, Appellee, v. Chicago, Rock Island & Pacific Railway Company, Appellant.
    Gen. No. 5,210.
    1. Appeals and errors—when assignments waived. Errors not argued are waived.
    .2 Instructions—what considered upon application for peremptory. In determining a motion made by the defendant for a peremptory instruction, the trial court is not at liberty to weigh the evidence and to determine upon which side is the greater weight of the evidence but can only determine whether there is evidence fairly tending to make a case for the plaintiff.
    3. Instructions—when peremptory properly denied. A motion for a peremptory instruction is properly denied if there is any evidence from which if it stood alone the jury could without acting unreasonably in the eye of the law find that the material averments of any one count of the declaration have been proved.
    4. Negligence—when prima facie case established, because of violation of speed ordinance. Where the train which caused the injury was running at a rate of speed which violated an ordinance of the'city or village through which such train was passing, a prima facie "case of negligence is established against the railroad company and the injury will be presumed to have been inflicted by the negligence of the company, and while such presumption may be rebutted, yet the question whether the evidence introduced by the company is sufficient under all the circumstances to overcome such prima facie proof of negligence, is a question of fact for the jury.
    5. Ordinary care—when instinct of self-preservation may be considered, notwithstanding there was an eye-witness to the accident which resulted in death. Unless the eye-witness to the accident which resulted in the death of the plaintiff’s intestate not only saw the deceased just at the minute of the injury hut can describe his conduct just prior to the accident, the jury are entitled to consider in connection with the other circumstances surrounding the accident, the natural instincts prompting to the preservation of life and to the avoidance of injury, etc.
    Willis, J. dissenting.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of La Salle county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    M. L. Bell and William D. Fullerton, for appellant ; Benjamin S. Cable, of counsel.
    McDougall, Chapman & Bayne, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Stephen Pollasiak, a section hand in the employ of the Chicago, Bock Island & Pacific Bailway Company, was struck and killed while at work about 8:30 p. m. of December 16,1904, by the Bocky Mountain Limited, a westbound train, within the city limits of the city of Peru. He .left a widow and several children, for whose benefit this suit was brought by the administrator of his estate to recover damages for the injury to their means of support. Bach count of the declaration charged that deceased was in the exercise of due care for his own safety. The first count charged that the death was caused by the negligence and improper conduct of the defendant in carelessly and improperly driving said train. The second count charged a violation of the statutory duty to ring a bell and sound a whistle at eighty rods before reaching a public crossing. ' The third count charged that defendant drove said train through said city at an unreasonable and unsafe rate of speed. The fourth count charged that the section boss negligently ordered deceased to the place where he was killed and to do the work in which he was then engaged, and negligently failed to inform Trim of the danger attending the work or of the frequency of the passing of the trains there or that any trains would pass while he was in the performance of that work. The fifth count charged the violation of an ordinance of said city, prohibiting trains from running at that place at a rate of more than ten miles per hour. The sixth count charged a violation of an ordinance of said city, requiring a bell to be rung continuously upon every locomotive engine while running in said city. There was a plea of not guilty and a trial, and a verdict and a judgment for plaintiff for $2,500. Defendant below appeals.

The cities of La Salle and Peru join each other. Appellant’s depot at Peru is over a mile west of its depot at La Salle. At the depot at Peru the track is substantially east and west. Just west of the Peru depot is the section house where the lanterns and other appliances, used by the section men, are kept. Just east of the Peru depot is Plain street, running north and south. The next railroad crossing east of Plain street is East street, two or more blocks further east. Some considerable distance east of Plain street, on the north side of the main tracks, is a brewery. Going east from Plain street, on the north main track, there were two switches connected therewith, the one nearest Plain stréet being known as the freight house switch, and the second, about fifty feet further east, being known as the brewery switch. The freight house switch stand was about 150 feet west of the brewery. Pollasiak was a member of the section gang and worked daytimes; his day’s work ended between 5 and 6 o ’clock p. m. He had worked all day on the day in question and had retired and was asleep when, at 8 o’clock or a little later, the section foreman, Bolton, came to his boarding house and ordered him out to sweep the snow from the switches. He got up and went with the foreman to the section house. It was then snowing hard. The foreman gave him a lantern and a broom and directed him to go east and sweep the snow from the switches. This was about 8:25 p. m. The Rocky Mountain Limited, a passenger train which was not scheduled to stop at either La Salle or Peru, was due to pass Peru at 8:05 p. m. Westbound trains run on the north main track, upon which Pollasiak was directed to sweep the snow at the switches. That train had not passed when the foreman started Pollasiak east, and the foreman knew that fact. There is nothing to show that Pollasiak knew that the train had not gone west. There was also a fast train eastbound, due at about the same time, which had not passed. The foreman did not inform Pollasiak that these trains had not passed. About five minutes after Pollasiak left the section house the foreman heard several sharp whistles from the Eocky Mountain Limited, which were given just as the engine struck Pollasiak or instantly before striking him. Whether he was at the freight house switch at work or walking on the track east of the switch is a controverted question of fact. He was struck by the engine and thrown against the 100 mile post standing about fifty feet west of the freight house switch, and was instantly killed.

Appellant assigns eighteen errors, but in its brief and argument says that the errors complained of are (1) the refusal of the court to direct a verdict for the appellant, (a) because the evidence shows no negligence on the part of the appellant, and (b) because the evidence fails to show due care on the part of the deceased; and (2) the refusal of the court to give the fifteenth instruction, requested by appellant. By limiting its brief and argument to these errors, appellant has waived all other errors assigned.

In considering the error alleged in refusing to direct a verdict for appellant on account of lack of proof, either of negligence by appellant or of due care by deceased, it is to be remembered that in deciding such a motion the trial court is not at liberty to weigh the evidence and to determine upon which side is the greater weight of the evidence, but can only determine whether there is evidence fairly tending to make a case for the appellee. If there is any evidence from which, if it stood alone, the jury could, without acting unreasonably in the eye of the law, find that the material averments of any one count of the declaration have been proved, then it is the duty of the trial judge to deny the motion to direct a verdict, although he may be of the opinion that there is such a preponderance of the evidence in favor of the defendant that if the plaintiff recovers a new trial must be awarded. Libby, McNeill & Libby v. Cook, 222 Ill. 206.

There was in evidence an ordinance of the city of Peru requiring a locomotive bell to be rung continuously while such locomotive is in motion in said city; and the statute required a bell to be rung or a whistle to be sounded as the train approached Plain street. Various witnesses, located at different places in that neighborhood and who knew that the train was coming, heard no bell rung and no whistle sounded, until the sharp whistles were.given just at the time Pollasiak was struck. This was evidence fairly tending to show that the bell was not rung nor the whistle sounded till that instant. The engineer testified that the bell was rung automatically by compressed air and that it was ringing all the time while they passed through the cities of La Salle and Peru till the train stopped after striking Pollasiak, and that he blew the whistle at a distance of about 2,000 feet from the Peru depot, and that he gave a crossing whistle as he approached Plain street, and before he gave the sharp whistles at the instant of striking Pollasiak. Other witnesses testified that they heard the whistle and the bell. The jury might well have found upon this conflicting evidence that the positive testimony was the more worthy of belief and that the whistle was sounded and the bell was rung. But we are of opinion that the court, on the motion to direct a verdict, was not at liberty to weigh this conflicting testimony, and to decide that motion upon a finding that the preponderance of the evidence showed that the whistle was sounded and that the bell was rung.

But there is uncontradicted evidence that appellant was negligent in another respect. The ordinance limited the speed of the train to ten miles per hour. Appellee’s proof was that the train was running at from twenty to thirty miles per hour. The engineer testified that he was running at from fifteen to eighteen miles per hour and that the scheduled time for his train from the La Salle depot to the Peru depot, a distance of over a mile, was three minutes, or more than twenty miles per hour. The train was more than fifteen minutes late, and the jury might have reasonably believed that the engineer was trying to make up time, and that the estimate of thirty miles per hour was most nearly correct. Section 24 of the act in relation to fencing and operating railroads (Hurd’s R. S., 1905, p. 1581) provides that when any railroad corporation shall run any train at a greater rate of speed through the limits of any city than is permitted by any ordinance of said city, the railroad corporation shall be liable for all damages done to person or property by such train, “and the same shall be presumed to have been done by the negligence of said corporation. ’ ’ This statute has been applied and enforced in C. & E. I. R. B. Co. v. Crose, 214 Ill. 602; Winn v. C., C., C. & St. L. Ry. Co., 239 Ill. 132, 141, and in other cases, and it is held there that where the train which caused the injury was running at a rate of speed which violated the ordinance, a prima facie case of negligence was established against the railroad company, and that the injury must be presumed to have been inflicted by the negligence of the company, and while that presumption could be rebutted, yet the question whether the evidence introduced by the company was sufficient under all the circumstances to overcome the prima facie proof of negligence was a question of fact for the jury.

•The next question is whether there was such a lack of evidence of due care by deceased, or such proof of a lack of due care by him, that the court ought to have •directed a verdict for appellant. The engineer in charge of that train testified that as he entered upon the stretch of track between East and Plain streets, he saw a man with a white lantern walking between the east and westbound tracks 600 or 700 feet away; that this man walked within twenty or twenty-five feet of the engine and then stepped over to the westbound track in front of his train; that the engineer gave the alarm whistle just as the man stepped over, and that the engine struck him and threw him to one side. The engineer then stopped the train and went back to wheré deceased was lying. He testified that when he first saw this man the latter was in the range of the headlight, and that he, the witness, did not take his eyes off of the man from the time that he first saw him until the man stepped over to the westbound track, and that when he got close enough for the witness to see deceased the latter had his lantern on his arm and was putting on mittens or gloves; that the light on the locomotive was an electric light and was thrown straight ahead, and that deceased was walking very slowly. If this evidence is entirely true, then the court would have been warranted in holding that the jury could not reasonably find that Pollasiak was in the exercise of due care for his own safety, but must find that he was grossly negligent in stepping immediately in front of a coming train with an electric headlight illuminating the place where he stood. Appellant claims that this evidence is uncontradicted. We are of opinion that there is evidence in the record from which the jury might have grave doubt of the accuracy of the engineer’s recollection. When people thereabouts came to the place where the accident occurred, they found a lighted lantern standing by the switch stand which Pollasiak had been cleaning, and a broom lying near where his body was. If Pollasiak had been struck and thrown while carrying a lantern on his arm, the light certainly would have been extinguished and the lantern would have either been found on his arm or would have been lying somewhere between the place where he was struck and the place where his body lay, and it is extremely probable that it would have been broken. The accident could not have detached the lamp from the arm of deceased and set it upright and burning and unbroken by the side of the switch stand. There was no proof that any such broken or extinguished lantern was found thereabouts. There was no proof that the lantern standing by the switch stand was in use by any other employe of the company. We understand the proof to show by two witnesses that the task of sweeping out the snow at the freight house switch had not been completed when the witnesses arrived at the scene of the accident. The reasonable inference from all the testimony is that when Pollasiak arrived at this switch, he set his lantern down by the switch stand and began the work of sweeping the snow out of the switch, and that he was still engaged in that work and had not taken up his lantern to move on to the next switch stand when he was struck by this train. The brewery was situated in such a position that the Peru depot and the place where this switch stand was could not be seen by the engineer all the way from the La'Salle depot, nor could a man at the switch stand see an approaching train all the way from the La Salle depot, but the engine came around a curve near the brewery and could only be in sight from the switch stand, for a distance variously estimated at from 450 to 650 feet. As the engine came around that curve the electric light, which shone straight ahead, would first be thrown on a point south of the main tracks and then would reach the south main track, which was the eastbound track, and lastly, as the engine straightened out upon the run, it would shine down the track upon which the train was running. Hodder, the engineer of the Peru accommodation, whose run ended at Peru, had arrived shortly before this and had put his engine in the roundhouse and was walking home along the eastbound or south main track, and passed Pollasiak shortly before the accident. The engineer says nothing about seeing this second man, and yet as the headlight from his engine moved to the north as he came around the curve Hodder must have first come in the range of his vision in the line of the light before the light reached to the north track. If the engineer had been looking as intently as he now testifies he must have seen both of these men and he must have seen Hodder first. It may be that the true explanation of this apparent contradiction is that the engineer first saw Hodder and afterwards saw Pollasiak on the track in front of him at the switch just before he struck him, and did not realize that he had seen two men. Be that as it may, the trial judge would not have been warranted in deciding, on the motion to take the case from the jury, that Pollasiak was in fact walking towards the train at the time he was struck.

Appellee contends that in passing upon the question whether deceased was exercising due care or whether the proof is such on that subject that the court should have directed a verdict for appellant, it is an important consideration that deceased had a right to assume that appellant would obey the ordinance limiting the speed of the train to ten miles per hour, and that in fact this train was run two or three times as fast as the ordinance permitted; and that it was a question for the jury, whether he would not have got safely out of the way if, after the train rounded the curve by the brewery and its headlight was turned on the track where deceased was at work, it had run only ten miles per hour. In I. C. R. R. Co. v. Gilbert, 157 Ill. 354, an administrator sought to recover for the death of an employe killed while crossing the tracks at a place which was not a public highway, and based the right of recovery upon proof that the engine which killed the deceased did not ring a bell as required by an ordinance of the city of Chicago. Defendant claimed that the ordinance had no application to the relations between the railroad company and its employe on the right of way and not at a public crossing. On that point the court said: “An ordinance requiring the ringing of a bell on an engine running within the limits of a city would not be an unreasonable requirement, and a compliance therewith would tend to give notice of the approach of an engine on the track, and notice of its approach would tend to the protection of persons on or crossing such track. * * * The city having the right to adopt the ordinance, whoever would be benefited by a compliance therewith on the part of the company would be entitled to the protection that obedience to the law would furnish, whether an employe or not. ’ ’ In St. L. A. & T. H.R. R. Co. v. Eggmann, 161 Ill. 155, the action was based upon the alleged violation of an ordinance of the city of East St.-Louis prohibiting the running of passenger trains at a speed exceeding ten miles per hour and another ordinance requiring a bell on every locomotive engine to be continuously rung while the engine was running upon any track in that city, and upon the death of an employe as the result of such violation. It is argued that the ordinances did not apply to that case where an employe was injured while working in the yards of the railroad company. It was held that they did so apply. In St. Louis Ry. Co. v. Eggmann, 170 Ill. 538, the Supreme Court was urged to overrule the foregoing decisions, it being argued that the ordinances of the city of East St. Louis there involved, similar to the ordinances in the case in 161 Ill., were only intended to protect the public against the danger of moving locomotives and trains at public places and could have no legal application to cases between the railroad company and its employes relating to injuries inflicted by engines on the private grounds of the railroad company. The court gave due consideration to these arguments and adhered to its former rulings, and said: “The power of the municipality to pass the ordinance, as reasonably tending to protect persons against -injury, is not seriously questioned, and we can see no good reason for holding that a person should be deprived of that protection merely because he is at the time an employe of the company, working in its yards or other private grounds.” Deceased therefore had a right to expect that this train would be run at a speed not exceeding ten miles per hour. If the distance at which the train could be seen from that switch was as stated by appellee’s witnesses and if the train was running at the speed they stated, then Pollasiak would have had about ten seconds to get off of the track and out of the way after the electric headlight shone on the-spot where he was, while he would have had at least a half a minute to get out of the way if the ordinance had been obeyed. As said in Dukeman v. C., C., C. & St. L. R. R. Co., 237 Ill. 104: “The deceased hád a right to presume that appellant would not run its train in violation of the ordinance of the city, and contributory negligence could not be imputed to her for a failure to anticipate that appellant would approach this crossing at a rate of speed prohibited by the ordinance. In connection with the other circumstances surrounding the accident, the natural instincts prompting to the preservation of life and to the avoidance of injury, and consequent suffering and pain, may also enter into the consideration of the jury in determining the question of the due care of the deceased. (Chicago & Eastern Illinois Railroad Co. v. Beaver, 199 Ill. 34.) We are not prepared to say, as a matter of law, that the deceased was guilty of such contributory negligence as to preclude a recovery. We think this question was properly submitted to the jury as one of fact.” If it be said that the rule that, in determining whether deceased exercised due care, the natural instincts prompting to the preservation of life and the avoidance of injury, suffering and pain, may be considered, should not apply where there was an eye witness, and that the engineer was an eye witness in this case, yet we think it very doubtful whether the engineer saw Pollasiak. at least till just before he struck him; and we are of opinion that the exception just mentioned must refer to an eye witness who not only saw the deceased just at the instant of the injury, but who can describe the conduct of the deceased just prior to the accident. D. R. I. & N. W. Ry. v. De Yaeger, 112 Ill. App. 537.

But appellant contends that though such an ordinance may be ordinarily for the protection of an employe of a railroad company working on its tracks, yet that here Pollasiak knew that this train was scheduled habitually to violate this ordinance/ and because he knew that fact he was not entitled to the protection of this ordinance. There is no proof that Pollasiak knew* that this train was scheduled to run faster than ten miles per hour between the LaSalle depot and the Peru depot. But appellant says that it was his duty to know generally concerning the movements of trains, and he must be presumed to have known that fact. Pollasiak worked day times and not nights. His day was up at 5 or 6 o’clock p. m. There is no proof that he had worked nights, except that he was at work the night before this accident; and as to that night there is no proof at what hour he was called out nor that it was when or before this train went west. He was in bed and asleep on the night in question when this train should have passed. There was no proof that he had ever been at the railroad when it went by. As this train was not scheduled to stop at either La Salle or Peru, there can be no presumption that its time at each depot was given on the time tables, or that Pollasiak, an Austrian fifteen months in this country, could read English and could know what the time table or any other printed schedule told. There is no proof that any other train run through Peru by appellant was scheduled to violate this ordinance habitually. We do not think that the proof justified either court or jury in finding that Pollasiak knew that thig particular train was required by appellant to violate this ordinance habitually. It is also to be remembered in passing on the due care of deceased that the time for this train to go west and for another fast train to come east on the south track had both gone by, and that if Pollasiak knew the time of these trains, he would -naturally presume that they had already passed, especially as the foreman said nothing to him about them. We are of opinion that the court was not warranted in instructing the jury to find for appellant on the ground that the evidence was so conclusive that Pollasiak was not in the exercise of due care that the jury could not reasonably find to the contrary. We are of opinion that the court properly submitted the questions of the negligence of appellant and of the due care of deceased to the jury.

Instruction No. 15, requested by appellant and refused, was framed to tell the jury among other things that “so far as Pollasiak was concerned, the defendant had a right to operate its trains at any speed it saw fit provided only that such speed did not unnecessarily endanger Pollasiak while in the discharge of his duties.” The part of the instruction above quoted is not a correct statement of the law, for the reasons already stated, and the court therefore-properly refused it.

The foregoing considerations dispose of all the errors relied upon in appellant’s brief and argument.

Appellant does not argue that the appellee’s case was not supported by a preponderance of the evidence and that therefore the court erred in not granting a new trial, and we infer from its brief and argument that it does not desire to have us remand the cause for a new trial, for fear that the damages awarded may be heavier next time, but that it only desires a reversal if we shall decide that the trial judge ought to have instructed the jury for appellant and if we reverse the judgment with a finding of facts. We do not feel authorized to make such a finding.

The judgment is therefore affirmed.

Affirmed.

Dissenting opinion by Me. Justice Willis.

Section 1 of an ordinance of the city of Peru, introduced in evidence by appellee, provided that no locomotive engine, railroad passenger car or freight car or railroad hand-car shall be driven, propelled or run upon or along any railroad track within the corporate limits of the city of Peru, and east of Ferry street therein, at a rate exceeding ten miles per hour. Section 5 of the same ordinance provided that the bell of each locomotive engine shall be rung continually while running within that city. The engineer of the train causing the accident testified that at the time Pollasiak was struck his train was running from fifteen to eighteen miles per hour, and thereby there is conclusively established a violation of 'Section 1 of the ordinance. Appellee introduced no direct proof as to whether or not the bell on the engine was rung in accordance with the requirements of the ordinance. John Majchrzak, who claims to have seen a passenger train pass through Peru the night of the accident, but which is not identified as the train which struck Pollasiak, testified that he did not hear any bell ring nor any whistle blow, neither did he know whether or not any headlight was burning on the engine. Louis Train, working in the engine room of the Cahill Coal Company on the south side of the railroad tracks that night, did not hear any bell ring, although he heard the rumble of the train before it came. He did not notice any headlight on the engine that night, although he came out of the engine room when he heard the alarm whistles and looked at the train. Edward Brady, who was in a saloon near the tracks at the time of the accident and who went to the scene when the train stopped, testified that the electric headlight was burning, but that he did not hear a bell ring and did not know whether it rang or not. He further testified that he could hear the rumble of the train as it approached, although he was in a building with the doors closed. In opposition to this purely negative testimony with regard to the ringing of the bell, appellant’s witness, August Powell, the fireman on the train which struck the deceased, testified that the engine was equipped with a bell operated by an automatic air bell ringer; that the bell was ringing when the train passed through La Salle on the night in question; and that it continued to ring all the time until the train stopped in Peru. William Hodder, an engineer in the employ of appellant but not on duty at the time of this accident, was walking west on the south main track a little west of the Peru depot at the time the train here in question came from La Salle to Peru. He testified that the bell on the engine was ringing when the train stopped. C. W. G-oodall, the engineer of the train that struck Pollasiak, testified that the bell on his engine was ringing when he passed La Salle that night and that it continued to ring until after he stopped at Peru.

Deceased had worked as a section hand in Peru and La Salle for considerably more than a year before he was killed. He had undoubtedly in that period of time become accustomed to doing every variety of work on the tracks belonging to appellant in that locality. He must be held to have become entirely cognizant of the fact that his occupation and the place in which he had to work was very dangerous and that trains of all kinds and of varying speeds were liable to pass the place "where he was working at any time. Whether he had become sufficiently familiar with the time table of the company to know at what times the regular trains might be expected to pass him while at work or not, he had been working there long enough to know that trains were liable to pass at irregular intervals and at unexpected times and he must be charged with such knowledge. He may also be fairly presumed to have known that the work required of him in clearing switches at night in the midst of a snow storm was even more hazardous than his ordinary work performed in the day time, and he should have been even more careful while working at night and should have been more than usually watchful for his own safety. Two witnesses for appellee, one of them inside of a building with the doors closed, testified that they could hear the rumble of this train as it approached the city of Peru. The engineer and fireman on the train both testified that, after they left LaSalle, which is about one mile east of Peru, a crossing whistle, which consisted of two long and two short blasts, was blown for a highway crossing, a long blast of the whistle was blown for the city of Peru itself, and that later the series of short or alarm whistles was also blown. Hodder, who was walking west along the tracks when this train approached, also testified to hearing the same whistles. He further testified that he saw the reflection of the train headlight at La Salle as it shone around him on the snow. The witnesses, Train and Brady, had no reason for noticing the approach of that train on that night, and yet they testified that it was called to their attention by the rumble which it made. If these witnesses had the approach of this train brought to their attention, either by its rumbling noise, the reflection of its headlight, its whistle or its bell, it would appear that deceased must have failed to exercise due caution for his own safety or he would have known that the train was coming and would have stepped out of the way. If these witnesses noticed the approach of this train, when there was no reason shown for their being interested in its coming, the same noises or reflections should have told Pollasiak that he was in danger, if he had not been so absorbed in his work or in other things that he failed to pay attention to what was going on around him. The testimony of these witnesses makes it clear to me that had deceased been observing the care for his own safety required by the circumstances under which he was working, he would have known that a train was approaching and that he would be in danger if he stayed where he was. The intestate, on entering the service, impliedly undertook to observe all proper care for his own safety, without any warning against the ordinary perils of bis employment, and by bis contract of hiring assumed the risk of injury from the ordinary dangers, which would-include those known to him or discoverable by the exercise of ordinary care on his part. I. C. R. R. Co. v. Gilbert, 157 Ill. 354. While it (is the settled rule in Illinois that a servant of a railroad company, though performing menial labor, like that of a section hand, whether in railroad yards or on private right of way, is entitled to all of the rights offered the public either by ordinance, statute, or general custom of the company, as held in Otstot v. I. I. & I. R. R. Co., 103 Ill. App. 136, and cases there cited, and appellant here was clearly guilty of a violation of the ordinance restricting the speed of trains while passing through the city of Peru, yet that fact alone will not render appellant liable in damages where the evidence shows that deceased was not exercising due care for his own safety. Pollasiak was of fnll age, in the possession of his faculties, was familiar with work on the section and with the dangers of railroading, knew that a train was liable to come along upon the tráck on which he was working at any moment and that his work was especially dangerous when performed at night, and, knowing these things, it was his duty to keep a vigilant lookout in the direction from which trains would come on the particular track on which he was working. If this train was running at the rate of fifteen miles per hour, it took it about four minutes to traverse the mile between La Salle and Peru. The evidence shows that the reflection of the headlight was seen in Peru while the train was still in La Salle, and that such headlight or its reflection could be seen all the time it was coming from LaSalle to Peru, except for the short interval while the train was. on the curve just east of the brewery. If deceased had looked east at any time - during those four minutes, it is difficult to understand how he could have failed to notice the headlight of this train and have been warned thereby, to say nothing of the various whistles which were blown and of the rumbling noise e&Rsed by the passage of the train. The section boss testified that section men, especially when working by themselves, were required to look out for themselves, but that, if the men were new at such work, the boss would take it upon himself to look out for that particular man until he had learned to take care of himself. Pollasiak was not a green hand at this kind of work and must be considered to have known that he was expected to look out for himself, and to depend upon his own faculties to ascertain the approach of all trains and to keep out of their way. C. & N. W. Ry. Co. v. Thomson, 128 Ill. App. 594. It seems to me clear from this testimony that Pollasiak did not exercise due care for his own safety, that his death was due in a large measure to his own carelessness, and that appellee has no cause of action.