text:
    Herschbach Brothers, Appellants, v. Lucian Cassout and Maggie Cassout, Appellees.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Randolph county; the Hon. William: E. Hadley, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    Statement of the Case.
    This was an action of replevin brought by Herschbach Brothers to recover two-thirds of twenty-five acres of wheat that had been harvested and ready to thresh. From a judgment for the defendant, the plaintiff appealed.
    It appears from the record in this case that on September 1, 1913, the defendant Lucian Cassont made a mortgage to the State Bank of L. H. Gilster & Company, and that in said mortgage was included twentacres of growing wheat. It further appears from the evidence that the mortgage, while it bore date of September 1st, was not acknowledged or recorded until the 11th of October. On the 4th day of October of the same year defendants confessed a judgment in favor of plaintiffs for the amount of $101.10. Execution was issued and placed in the hands of the sheriff on the same day and on October 6, 1913, this execution was served by copy upon the defendants, and upon the same day defendants filed their schedule of personal property and in the schedule is included “25 acres of growing wheat, less rent of one-third,” and said schedule also contains the following clause: “Above property belongs to Lucian Cassout, and the mules, wheat and wagon are under mortgage, or contract to be mortgage placed on the wheat as soon as .sown.” On November 19th the plaintiffs caused the aforesaid execution, then in the hands of the sheriff, to be levied upon the 25 acres of wheat contained in said schedule, and on December 1, 1913, the wheat was sold at public auction by the sheriff and bid in by plaintiff in the execution at $107.51. It further appears from the evidence that after the wheat had been cut by the defendant Lucian Cassout, and was ready to be threshed, the plaintiffs sued out this writ of replevin and obtained possession of such wheat. Upon the making of said schedule the sheriff did not select appraisers and the property set forth in the schedule was treated as exempt property. It was contended by the plaintiff that at the time the schedule was made the wheat in question had not been sown but was sown thereafter and prior to October 11th, and consequently was additional property acquired and subject to levy under plaintiff’s execution as after-acquired property.
    Abstract of the Decision.
    1. Execution, § 6

      —when exempt property should not be subjected to sale under execution. Where the court is satisfied, that personal property is exempt," such property ought not to be subjected to sale under an execution, except it is clearly made to appear that the debtor has in some manner forfeited his right to the exemption.
    2. Exemptions, § 26

      —when description of property in schedule

      of exemption controlling. Where a description of property listed in a schedule of exemptions may reasonably be construed as applying to property sold under an execution, such construction will be adopted.

      A. E. Crisler, for appellants.
    E. E. Sprigg, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McBride

delivered the opinion of the court.

3. Replevin, § 105 —when burden on plaintiff to prove property acquired after filing of schedule of exemptions. In an action of replevin to recover property levied on under execution and alleged to be exempt, by defendants, the burden of proving that the property was acquired after the filing of a schedule of exemptions is upon the plaintiff.

4. Exemptions, § 38 —when levy on and sale of exempt property evasion of law. A levy upon and sale of property which the levying officer knows is sought by the debtor to be exempted by his schedule will be treated as an evasion of the law.

5. Exemptions, § 25 —what is duty of officer holding execution towards debtor. An officer holding an execution is required to deal fairly and in good faith with the debtor and not to use the provisions of the exemption law to trap or catch debtors who are honestly and in good faith seeking to avail themselves of the benefit of its provisions.

6. Exemptions, § 3 —how exemption laws construed. The exemption laws are made for the purpose of protecting the poor and unfortunate and should be liberally construed by the courts, and the right of such debtors should be fully upheld without stint or grudging.


source: Caselaw Access Project

author: Mr. Justice McBride

license: Public Domain

text:
    Charles Huffstuttler, Appellee, v. William Crabtree, Frank Johnson and Isaac Johnson, Appellants.
    1. Roads and bridges, § 220

      —when evidence insufficient to establish .wilful negligence of commissioner of highways in failing to repair road. Evidence which does not satisfactorily show that the attention of commissioners of highways has been called to defects in roads under their supervision and care will not warrant a finding of wilful negligence of. duty in failing to make repairs thereon.
    2. Roads and bridges, § 220

      —when commissioner of highways not liable for defects in highway. Commissioners of highways are not liable in damages for mere neglect to repair the roads in their town.
    Appeal from the Circuit Court of Hamilton county; the Hon. Jacob R. Creighton, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed with finding of fact.
    Opinion filed December 1, 1915.
    Isaac H. Webb and Harry Anderson, for appellants.
    J. H. Lane and Thomas H. Creighton, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McBride

delivered the opinion of the court.

This action was commenced before a justice of the peace, appealed to the Circuit Court of Hamilton County, where a trial was had and judgment rendered against the defendants for one hundred and fifty dollars and costs of suit, to reverse which judgment the defendants prosecute this appeal.

It appears from the evidence that the appellants were .Commissioners of Highways of the Town of Flannigan in Hamilton County. That there was a public road extending nearly. east and west through said town and is described by the witnesses as a road passing by the residence of one William B. Johnson. On this road and near the residence of said Johnson was a culvert of the length of about twelve feet and of the width of about four feet. There was a plank broken out on the south end of the length of about four feet or five feet, and the north end of about two and one-half or three feet. Some of the witnesses described the plank broken on the north end as having the appearance of being bent down by an engine or some heavy vehicle crossing it, but not entirely broke in two, while others say it was entirely broken off.

It appears from the evidence that on October 15, 1912, appellee with his family was driving a two horse vehicle across this culvert and one of the horses stepped into the hole of the north end of the culvert, fell and broke his leg from which injury he afterwards died. It further appears from the evidence of a portion of the witnesses that the hole had been there for some two or three weeks, while other witnesses testify to having passed over the bridge a short while before the injury without observing this hole. There was also a mud hole about one hundred yards east of this bridge and some abutments out of repair on a bridge about one-fourth of a mile west of the culvert. The commissioners had divided the work of the town and the part on which this culvert was located was allotted to the defendant Crabtree, who lived about one mile and a half from the culvert, the other commissioners living still further away. About one month previous to the accident Grus Matheny, a mail carrier, testified that in a conversation with appellant Crabtree he asked him if he could not fix these bridges and mud holes in shape so that they could be traveled upon, and says that at that time they were standing about fifty yards from this culvert and that Crabtree said he would have them fixed and thereafter and on about the 20th of September sent the overseer of the highways, who fixed the approach to the bridge and the mud hole but did not fix this culvert. Crabtree says that in the conversation with Matheny his attention was called to the mud hole and he was asked to fix it but denies that his attention was called to this culvert, and Matheny says that he does not remember whether he called his particular attention to the culvert or not. William Die, the overseer who fixed the mud hole and repaired the approach to the bridge, says that he noticed that a plank was broken out of the south end of this bridge but did not notice anything wrong with the north end; that he had no plank wherewith to repair the south end and never informed Crabtree of the defective condition of the culvert. It further appears from the evidence that after the accident Crabtree directed the overseer to get some lumber and repair the culvert, which he did.

During the argument of this case counsel referred to and cited authorities upon the question of liability of commissioners of highways for a wilful failure to repair the highways in their town. We do not regard it as necessary to determine, and do not decide, as to whether or not a wilful failure upon the part of the commissioners would create a liability or not, as we are of the opinion that the facts in this case do not warrant a finding of wilful failure to discharge the duties of the office. It does not appear from the evidence that any of the appellants had knowledge of the condition of this specific culvert, and no witness testifies that their attention was called to it, while the witness Matheny says he called Crabtree’s attention to the fact that the roads and bridges in that neighborhood needed repairing, yet he says he does not know whether he called his attention to this bridge or not but Crabtree says he did not call his attention to this bridge; and it further appears that within a short time after Matheny spoke to Crabtree about the condition of the roads that Crabtree sent the overseer to repair them and the overseer says that he made the repairs, except that he put no plank on the south end of this culvert because he had none, but never advised Crabtree of the condition of the culvert, and there is certainly no claim that the other appellants had any knowledge of the condition of this road. We cannot say and do not believe that this testimony discloses a deliberate purpose upon the part of the appellants not to discharge the duties required of them. “The true conception of wilful negligence involves a deliberate purpose not to discharge some duty, necessary to the safety of the person or property of another, which duty the person owing it has assumed by contract, or which is imposed upon the person by operation of law. * # *

“Outside of statutes which exist in one or two States, denouncing "wilful negligence, some of the cases lay down the doctrine that an entire absence of care for the life, the person or the property of others, such as exhibits a conscious indifference to consequences, makes a case of constructive or legal wilfulness, such as charges the person whose duty it was to exercise care, with the consequences of a wilful injury.” Sections 20-22, vol. 1, Thompson on Negligence.

In view of the evidence as disclosed by the record in this case, we are of the opinion that no such state of facts is shown as warrant a finding of wilful negligence of duty, and the case will be considered and decided upon the question as to whether or not commissioners of highways are liable for mere neglect to repair the roads in their town.

It is strenuously insisted by counsel for appellee that for highway commissioners who have ample means at their command to neglect to repair the roads and to permit their roads to remain in such a condition as to be unsafe to travel upon is unjust to persons who may have occasion- to use such highways, and while there may be much force in the argument presented, yet we are of the opinion that it is not an open question in our courts. It has been held by the highest courts of this State that while towns have power to levy taxes, “they are not liable, in a common law action, for damages sustained by an individual on account of such action being neglected or inadequately performed. * * * The reasons always given for exempting towns from such actions are, that they are established as local subdivisions and agencies of the State for governmental purposes, and that duties are imposed upon them without their assent, exclusively for public purposes. The same reasons apply, with at least equal force, to commissioners of highways as an agency through which a town performs a public duty. * * * If he should neglect to perform any of the duties enjoined upon him while acting, the public injury renders him liable to a penalty of not less than ten dollars nor more than fifty dollars. The office and its duties are compulsory, and are imposed upon the individual for public purposes, in like manner as upon the town. The court draws a distinction between the town and the municipal corporation proper, on the question of liability, in favor of the town, and it would seem most unjust to reverse the rule as to the town officer and hold him to the same responsibility as a city or other municipal corporation. * * * The statute has provided means for redressing the public wrong by a penalty, and that is sufficient to enforce the public duty. * * * The decision in Bartlett v. Crosier, supra (17 Johns. 439), that an action would not lie against an overseer of highways at the suit of .an individual for an injury which he had sustained in consequence of the neglect of the overseer to keep a bridge in repair, was quoted approvingly in Hollenbeck v. Winnebago County, 95 Ill. 148, and later decisions in New York of a different character were ignored. Being of the opinion that plaintiff had no right of action, the judgment will be reversed.” Nagle v. Wakey, 161 Ill.387. We think the dissenting opinion filed in the cause last above cited delineates and emphasizes, the fact that the Supreme Court in that case intended to exempt commissioners of highways from liability for damages for neglect to repair.

Again, in the case of Kennedy v. McGovern, 246 Ill. 497, holds that the amendment of 1907 to section 51, of the Roads and Bridges Act (J. & A. 9810), which makes highway commissioners in counties not under township organization, personally liable for injury to person or property due to their failure or neglect to keep the highways of their district in repair is invalid as special legislation, there being no reasonable ground for making commissioners liable in counties not under township organization, and not making commissioners under township organization liable under the same conditions. We think that the court in its argument in that case necessarily reached the conclusion that commissioners of highways of towns in counties under township organization were not liable in damages for failure or neglect to keep the roads and bridges in good repair. It is there said: “The commissioners in both classes of counties have the same general responsibilities, and no liability for injury because of neglect to keep the highways in repair should be imposed upon one class that is not imposed upon the other. In a county not under township organization persons injured on the highway might, under this amendment, recover damages for such injuries from the commissioners of highways, when under exactly similar circumstances persons injured on this same highway but just across the county line, in a county under township organization, could not recover.” Kennedy v. McGovern, supra.

It appears to us from a consideration of the .cases that the Supreme Court of this State "has reached the conclusion that a commissioner of highways is not liable in damages for mere neglect to repair the roads in his town, and we do not believe that the appellants, under the law, are liable to appellee for the damages sustained, and the judgment of the lower court is reversed.

Judgment reversed with finding of fact.

Finding of fact. The court finds as a fact that the defendants were not guilty of wilful negligence.


text:
    H. L. Thompson, Appellant, v. John Sprague, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    Statement of the Case.
    Action of forcible detainer by H. L. Thompson, plaintiff, against John Sprague, defendant. From a judgment for defendant, plaintiff appeals.
    The plaintiff’s grantor having leased a farm to the defendant for a term of one year, which later became a tenancy from year to year by defendant’s holding over, transferred his interest to the plaintiff who, in turn, leased the premises back to him, the defendant still treating the grantor as his landlord and being ignorant of the conveyance and lease. After the expiration of the lease the plaintiff brought this action for the possession of the property.
    James B. Lewis and Johh L. Thompson, for appellant.
    W. F. Scott, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McBride

delivered the opinion of the court.

Abstract of the Decision.

1. Landlord and tenant, § 4 —when subtenancy not created. A tenancy cannot be changed into a subtenancy by the execution by the landlord’s grantee to the landlord of a lease of which the tenant has no knowledge.

2. Forcible entry and detainer, § 71 —what purchaser of interest of landlord must, prove to maintain action against tenant. In an action of forcible detainer against a tenant lawfully in possession at the time of the plaintiff’s acquisition of the landlord’s' interest in the premises, the plaintiff must show affirmatively not only his acquisition of title but, further, that the tenant’s rights under and by virtue of the tenancy have terminated.

3. Forcible entry and detainer, § 32 —what notice must be given tenant from year to year. A tenant from year to year is en-. titled to sixty days’ notice to terminate his tenancy before an action of forcible detainer can be maintained against him.

4. Instructions, § 10*—when giving large number improper. The practice of submitting large numbers of instructions upon simple issues is to be condemned as tending to confuse rather than to aid the jury in their deliberations.

5. Judgment, § 270—when court may amend record of nunc pro tunc. The court may on motion made after the expiration of' the term at which a judgment is rendered correct the record thereof nunc pro tunc.

6. Forcible entry and detainer, § 11 —when owner executing lease may not maintain action. An owner of property, having executed a lease thereof under which the lessee is entitled to possession, may not maintain an action of forcible detainer against one in possession.


text:
    Henry Huss, Appellant, v. J. W. Ford, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Brokers, § 1

      —when person agent and not "broker. One who is given power to examine property and determine whether a trade of other property therefor should be made and who is not employed simply to bring the parties together is an agent and not a broker.

      Appeal from the Circuit Court of Fayette county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    Statement of the Case.
    Action by Henry Huss, plaintiff, against J. W. Ford, defendant, on a promissory note. From a judgment for defendant, plaintiff appeals.
    The plaintiff’s assignor was authorized by the defendant to select suitable property and negotiate an exchange thereof for property of the defendant, which exchange was subsequently effected in accordance with a contract, entered into by plaintiff’s assignor in the name of the defendant as principal with a third party, one of the terms of which stipulated that such other party to the exchange should pay to the plaintiff’s assignor a specified amount as commissions. As a defense to an action by the plaintiff on the defendant’s note for commissions it was claimed that the note was void as the plaintiff’s assignor had contracted for commissions with both parties to the transaction.
    F. M. Guinn, for appellant.
    Brown & Burnside, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same toi»ic and section number.

   Mr. Justice McBride

delivered the opinion of the court.

2. Principal and agent, § 69*—when agent not entitled to recover commission, from both parties. An agent who is given power to examine property, to determine the advisability of an exchange, and to bring the parties together may not recover commissions from both parties.

3. Evidence, § 322*—when parol evidence inadmissible to vary terms of contract. As between a party to a contract and his agent executing it in his name, where the terms of such contract are definite and certain, parol evidence cannot be admitted to vary its terms.

4. Evidence, § 322*—when parol evidence inadmissible to vary contract for payment of commissions. In an action by a real estate agent against his principal to recover on a note given in payment of commissions, the plaintiff cannot show by parol that money stipulated in a contract for the exchange of property entered into by him as agent in the name of his principal, to be paid to the plaintiff by the other party to the trade as brokerage fees, was in fact, to be paid and was received for and on account of another party.


text:
    Louis Rahe and Herman Rahe, Appellees, v. Henry Jobusch, Joseph H. Gauen, Charles Wischmeier and Lena Wischmeier, Executors of Will of D. Wischmeier, Deceased, impleaded with Frederick Jobusch et al., Appellants.
    1. Executors and administrators, § 101

      —power of executor over property as against trustee. Where a will- creates an executor and also a trustee, and gives each of them power over the property without specifying the particular property that each shall have jurisdiction over, the law favors the settlement of the estate by the executor and the determination of the amount that shall pass to the trustee.
    2. Executors and administrators, § 101

      —when testamentary trustee may devest executor of property. A testamentary trustee cannot devest the executor of the property until a reasonable time has elapsed for the settlement of the estate.
    3. Executors and administrators, § 81

      —when chargeable with loss of uncollected personal debt. An executor who owes a note to an estate which he could have collected with the exercise of reasonable diligence and fails to make such collection is chargeable, under Hurd’s Rev. St., ch. 3, § 58 (J. & A. 107), with the amount so lost.
    4. Judgment, § 692

      —eonclusiveness of judgment of County Court. The fact that it has been adjudicated and determined by the County Court that a fund was held by a person as executor and not as testamentary trustee, is of weight in determining in what capacity the fund was received and controlled by him.
    5. Executors and administrators, § 81

      —when not insolvent so as to be excused for not collecting personal debt. In an action to set aside an order of the County Court discharging an executor and for a determination as to whether the sureties on the executor’s bond or those upon his bond as trustee were liable, and for an accounting, evidence held sufficient to sustain a finding that the executor, who owed a note to the estate, was not insolvent at a certain time, and that he could have collected the debt out of his property with the exercise of reasonable diligence.
    6. Executors and administrators, § 582

      —when surety liable upon bond of executor. The simple fact that a person becomes a surety upon an executor’s bond does not make such surety liable for a debt that such executor may be owing the estate.
    7. Executors and administrators, § 550

      —when evidence sufficient to establish fraud in procuring order of discharge. In an action by legatees of a will against the executor, both in such capacity and as testamentary trustee, and against the sureties on the trustee’s bond to set aside an order discharging the executor and for a determination as to whether the sureties upon the executor’s bond or those upon the trustee’s bond were liable, and to what extent, and for an accounting, evidence held sufficient to sustain a finding that such order was procured by fraud, so as to authorize setting it aside.
    8. Executors and administrators, § 85

      —when duty of executor to compound and sell claims. It is the duty of an executor, where a claim owed to the estate is doubtful or desperate, to make application to the court to compound and sell the claim.
    9. Judgment, § 493

      —when surety bound by judgment against executor. An adjudication by the County Court made upon the final report by an executor that the executor had a certain sum in his hands for distribution, and directing him how to make distribution, is conclusive upon the executor and upon his sureties under Rev. St., ch. 3, § 115 (J. & A. If 165).
    10. Judgment, § 364

      —when judgment of County Court cannot he collaterally attacked. The judgment of the County Court approving the" final report of an executor and ordering payment from the funds in his hands cannot be collaterally attacked except for fraud.
    11. Executors and administrators, § 153

      —what constitutes devastavit hy executor. An executor who fails to make payment according to the order of the County Court is guilty of a devastavit.

    12. Executors and administrators, § 153

      —recovery on bond of executor for devastavit. Where an executor is guilty of a devastavit in not making payment pursuant to an order of the County Court approving his final report and requiring payment out of funds in his hands, suit may be maintained on the bond of such officer and the judgment together.
    Appeal from the Circuit Court of Monroe county; the Hon. William E. Hadley, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    B. R. Burroughs and Roy E. Gauen, for appellants.
    J. M. Bandy and D. J. Sullivan, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McBride

delivered the opinion of the court.

The appellees et al. recovered a decree against the appellants, in the Circuit Court of Monroe county, for $7,277.40, which decree is sought to be reversed by this appeal.

It appears from the record in this case that Frederick William Bahe died testate prior to February 13, 1906, and that by the terms of his will he provided: First. “I order and direct that my, executor hereinafter named pay all my just debts and funeral expenses as soon after my decease as conveniently may be.” Second. Is a devise of real estate therein described to Henry Bahe. Third. “I give and devise to Frederick Jobusch, as trustee, with directions to him as such testamentary trustee, to pay out of all cash moneys and notes as follows:

“First. To pay my just debts which I may owe at the, time of my death.
“Second. To pay forty dollars for a tombstone.
“Third. To pay to Anna Eahe, widow of my son, Henry Eahe, the sum of twelve hundred dollars when my grandson, Henry Eahe, becomes twenty-one years of age. After paying the above, the balance of all cash and notes is to be divided equally between my grandchildren, Louis Eahe, Herman Eahe, George Eahe, Otto Eahe and Edward Eahe, to be paid to them by said Frederick Jobusch as trustee, when they attain their majority. Lastly, I hereby nominate and appoint Frederick Jobusch to be the executor of this, my last will and testament, hereby revoking all former wills by me made.”

On February 17, 1906, Frederick Jobusch was appointed and gave bond, which' was approved by the court, and qualified as executor of said estate, and on May 8, 1906, filed an inventory of the real estate and personal property of said estate, and included in such.inventory a note for the amount of $3,050, and interest, owing by himself and his wife Elizabeth Jobusch, to said estate. That on May 5,1908, he made a final report to the court as such executor and in the report charged himself with all moneys collected, including the note and interest owing by himself and wife; and credited himself with the moneys paid out, at which time it left in his hands a balance of $8,280.54, which report was approved by the court and the executor was ordered to pay Anna Eahe out of said sum the amount of $1,200 when Henry Eahe became twenty-one years of age, which the court found to be on April 2, 1908, and that the remaining balance of $7,080.54 be paid to the testamentary trustee, Frederick Jobusch, on entering into bond in the sum of $15,000; and on July 16, 1908, he filed in the office of the County Court a receipt as executor from Frederick Jobusch, testamentary trustee, for the amount of $7,080.54, also a bond as such testamentary trustee for'the amount of $15,000, which bond was approved and an order entered discharging said Frederick Jobusch as executor aforesaid.

There was evidence introduced pro and con tending. to show solvency and insolvency of Frederick Jobusch during the time he was executor, which testimony will be hereafter examined and commented upon. This bill was filed by the appellees against the appellants and the sureties upon the bond given by Frederick Jobusch as testamentary trustee and other parties who were interested as legatees under the will. The bill with its amendments sets forth the facts substantially as above stated, and asks that the order discharging the executor be set aside, and a determination by the court as to whether the sureties upon the bond of Jobusch as executor, or those upon his bond as trustee, or both of them, are liable and to what extent, and for an accounting. Except as to the parties which were afterwards changed by order of this court, the bill more in detail is shown in the case of People v. Jobusch, 165 Ill. App. 540, which was heard by this court at a former term. To this bill an answer was filed by the appellants denying any liability as the makers of the executor’s bond, and states that the executor made a final settlement and payment to.Frederick Jobusch as trustee aforesaid and in the manner aforesaid. The sureties upon the bond as trustees deny liability because they say that the County Court had no authority to take such bond, and that the bond taken was void and that the liabilities were against Frederick Jobusch individually as such trustee.

The lower court in its decree determined that the executor and sureties upon his bond as such executor are liable for the total amount of the deficiency herein shown to exist, and to this the appellants preserve an exception.

A proper determination of the question as to the parties upon which bond or bonds, if any, are liable, will require a consideration of two propositions, the first of which is: Was the property devised received by Frederick Jobusch as executor of William Rahe, Sr., or as trustee under the will? The first clause directs the executor to pay all debts and funeral expenses. The third clause gives' to Frederick Jobusch, as trustee, with directions to him as such testamentary trustee, to pay out of all cash, moneys and notes as follows : $40 for tombstone; $1,200 to Anna Rahe; and after paying the above the balance of all cash and notes to be divided equally between my grandchildren, naming them; to be paid to them by said Frederick Jobusch as trustee when they attain their majority. And the will concludes by appointing Frederick Jobusch as executor. It is contended by counsel for appellant that the effect of this will was to pass this property directly and immediately to Frederick Jobusch, as trustee, and that the title vested in said trustee subject only to the payment of the debts and funeral expenses. We cannot agree with this contention. Where a will creates an executor and also a trustee, and gives each of them power over the property, without specifying the particular property that each shall have jurisdiction over, we are inclined to think that the law would favor the settlement of the estate by the executor and ascertaining the amount that would pass to the trustee, which could only be done after the executor had completed his duties. “The law seems' to favor the administration of the estate by the executor rather than by the trustee, and unless it clearly appears from the will that the testator intended it to be held by the trustee the executor is to be considered as holding it; and where the will provides for the coexistence of the two functions of executor and trustee, the persons exercising those duties do so as executors and not as trustees.” Am. & Eng. Encyc. of Law, vol. 28, p. 936. '

Under onr statutes an executor could settle an estate, collect the debts and take care of doubtful claims with much better advantage to the estate than a trustee could, as our statutes give an executor or administrator, where a claim is doubtful or where there is some equitable or legal defense to any claim, the power, under such circumstances, to apply to' the County Court for an order compounding such claims and selling them, which power is not given to a trustee. Section 83, ch. 3, of Hurd’s Revised Statutes. (J. & A. 133.) This would be of much advantage to an estate and the courts are inclined to adopt that rule which would be most advantageous in the settlement of estates. It is said by our Supreme Court: “It is, of course, true that where the same person is executor and trustee, his duties in the two relations are separate and distinct and he does not take a fund as trustee until it is separated from the general funds in his hands as executor, hut when his duties concerning' a fund as executor are completed and his duties as trustee begin, it becomes his duty to hold the fund as trustee, and a court of equity will regard that as done which ought to he done.” Fenton v. Hall, 235 Ill. 557.

Under the provisions of this will Frederick Jobusch was created executor and trustee and practically the same fund given to him in each capacity, and it seems to us that under such circumstances he chose to receive the property as executor and to act in that capacity in the settlement of the estate, that the will would not require him to take the property as trustee out of his hands as executor and administer it as trustee, and were some third person designated by the will as trustee instead of himself we feel quite sure that such third person could not devest him of the property as executor until a reasonable time had elapsed for a settlement of the estate. In this case there could be no doubt that Frederick Jobusch did assume the duties and take charge of these funds as executor. He gave bond as such executor, filed an inventory of all of the property of the estate, charged himself with it as executor, and then proceeded to collect the notes as executor and made a final report showing that he had collected the several notes and claims inventoried and presented this report to the court, which was approved, and thereupon an order was made to pay the balance to him as testamentary trustee. We think this mode of procedure and investing of the property in the trustee, after a reasonable time has been given for settlement as executor, is well sustained by the case of Bell v. People, 94 Ill. 230. The fact of its having been adjudicated and determined by the County Court that this fund was held by Jobusch as executor is also of weight in determining in what capacity the fund was received and controlled by him. The cases of People v. Huffman, 182 Ill. 390; and People v. Petrie, 191 Ill. 497; Weir v. People, 78 Ill. 192, which hold, in substance, that the bond of an executor is not liable for a fund passed to a trustee, are not in our judgment in conflict with the conclusion herein arrived at, and while it is true it was held in the case of Weir v. People, supra, where Kraft was appointed administrator of estate of Jacob Britzer, Jr., and received a fund as such administrator, to which fund Jacob Britzer, Sr., was the sole heir, who died one month later leaving a will and appointing Kraft as executor, that Kraft thereafter paid no attention to the fund received as administrator but proceeded to treat the fund as belonging to Jacob Britzer, Sr., and held it as his executor and made no further account of it to the estate of Jacob Britzer, Jr., that the fund had passed to him as executor of the estate of Jacob Britzer, Sr., and that the bondsmen of the administrator of Jacob Britzer, Jr., were not liable. This case, however, was so determined principally because the fund held by Kraft as administrator belonged to the estate of Jacob Britzer, Sr., and that it was treated by the executor as having passed from his hands as administrator of Jacob Britzer, Jr., to his hands as executor of Jacob Britzer, Sr., and we do not believe that this case is in conflict with the rule above announced. We are of the opinion that Jobusch held this fund as executor.

It is contended that after .the settlement of the estate an order was entered by the County Court directing the payment of this fund to Jobusch as trustee and that thereafter he presented a receipt from himself as trustee, which was approved by the court and the executor and the sureties upon his bond were discharged. It is very clear from the evidence in this case that at the time Jobusch presented this receipt and secured an order discharging the sureties upon his bond that at that time he had no money or means with which to pay the amount that had been determined was in his hands, and that the procurement of this order was a fraud upon the court, and is by this proceeding sought to be set aside. We think that the court was warranted in holding, under the evidence, that this proceeding was a fraud upon the County Court, and that he did not err in setting aside this order.

The second proposition to be determined is as to the liability of appellants for the full amount less any payments since made, ascertained by the County Court to be due in this estate. The contention is that the note owing by Jobusch and his wife to the amount of $3,050, and interest, was in fact never paid, and for that reason the sureties upon the bond are not liable. We recognize the rule that the simple fact that a person becomes a surety upon an executor’s bond does not make such surety liable for a debt that such executor may be owing to the estate. If, however, such executor owing said debt is able to pay the debt and he fails to collect it, then he fails in the discharge of his duties as required by law. “Executors and administrators shall be chargeable with so much of the estate of the decedent, personal or real, as they after due and proper diligence might or shall receive.” Section 58, ch. 3, Hurd’s Revised Statutes. (J. & A. fí 107.) Reasonable diligence was required of Jobusch to collect this debt even from himself and wife, and. if it could have been collected by reasonable diligence and he failed to do so, then we think he is chargeable under this statute with the amount so lost to the estate. Whitney v. Petticord, 63 Ill. 249. This doctrine is recognized by appellants but they contend that Jobusch was insolvent all this time and that they could not have collected the debt from him; while the evidence shows that during this time he was largely indebted to other persons, and it may be that had his property been subjected to sale for the payment of his debts that it was doubtful if he was solvent but Jobusch thought his business was in good condition and never realized there was any question about his insolvency until 1909, at least one year after his report as executor had been approved, and the evidence shows that during this time he was the Owner of a homestead of the value of $3,500, and stock of goods of the value of $10,000, and an undivided one-eighth interest in eight hundred acres of land, such interest being of the value of about $5,000, none of which was incumbered. He also had accounts upon his books to the amount of about $20,000, but there is no evidence as to the value of these accounts. Even if he was largely indebted, we think that the court was warranted in holding that under the circumstances he certainly could have made this money out of that property for this estate. If it were true that this was a doubtful or desperate claim against the estate, then it became his duty to make application to the court to compound and sell the claims, for it certainly was of some value, but he did not do this and we presume for the reason that he supposed it was good, and being so he certainly could have secured payment with the property he had on hand. In this case, however, there was an adjudication by the County Court made upon the final report, that the executor had in his hands for distribution, $8,280.54, and he was directed how to distribute the same, and we think that this order must be conclusive not only upon the executor but upon his sureties and cannot be attacked except for fraud, and we see no evidence of fraud up to that date in this record. “Where a report is made by an administrator or executor, and there has been an adjudication by the court approving that report and ordering payment from the funds in the hands of such administrator, that judgment is evidence that is conclusive on such administrator or executor, as also upon his sureties, by the express provisions of section 115, of ch. 3 of the Eevised Statutes. (J. & A. 165.) Upon failure to pay over in accordance with such order of the court, the executor or administrator is guilty of a devastavit, and suit may be instituted upon the bond of such officer. Such suit is on the bond and judgment itself, and such judgment, when offered in evidence, showing the approval by the court and order to pay over, is like any other judgment of a court of competent jurisdiction, that cannot be attacked in such collateral action except for fraud. Ralston v. Wood, 15 Ill. 159; Housh v. People, 66 id. 178; Frank v. People, 147 id. 105.” People v. Huffman, 182 Ill. 407.

We believe that the lower court was warranted in holding the sureties upon the executor’s bond liable for such part of that fund as had not been paid.

Counsel for appellant in his reply brief says that the amount decreed to be paid was at all events $400 too much, but he does not point out how he arrives at that conclusion or wherein any error was made but after a computation of the interest upon the amount left, after deducting payments, we do not find such error to exist.

After a careful consideration of this case we are not able to say that the court committed any error in its findings and its conclusions and the decree of the lower court is affirmed.

Decree affirmed.


text:
    Nicholas Gill, Appellant, v. John Gill, Sr., Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Perry county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    Statement of the Case.
    Action of forcible detainer by John Gill, Sr., plaintiff, against Nicholas Gilí, defendant, to recover possession of land alleged to have been wrongfully withheld from plaintiff by defendant. From a judgment for plaintiff, defendant appeals.
    Plaintiff purchased the premises in question from one William McConnell for $1,500. Some time during the following March defendant took possession of said premises at the request or with the consent of plaintiff. Defendant claimed that the arrangement made between him and his father was that he was to rent the place and give his father one-third of the crops, if the latter needed the same; that plaintiff was to keep up the taxes; that defendant was to have possession of the place as long as plaintiff lived, and that it was to belong to defendant; that he went on the place under this arrangement, made valuable improvements in expectancy of future ownership, and fulfilled his part of the contract. Plaintiff claimed that the relation between the parties was that of landlord and tenant; that the tenancy was one from year to year, commencing on the first day of March in each year, and providing for a crop rent.
    On December 11, 1911, plaintiff served a written notice upon appellant to vacate said premises on March 1, 1912, which he failed to do. That thereafter this suit was instituted. The evidence was conflicting, but it appeared from the testimony that a greater number of witnesses were introduced on behalf of the defendant than plaintiff. Defendant denied specifically that his father rented the land to him as long as he did good on the place hut said: “While he came to me and told me to take possession of this place and to farm it as my own farm, that it would be mine at his death * * *. And if he needed the rent he wanted it, and if he did not need the rent I need not pay the rent but I had to pay taxes.” He also testified: “He got his rent every year with the exception of the one year he gave me the com.” The next witness introduced by defendant was his brother, John Grill, Jr., who testified: “Why he told me he had bought the McConnell place and was going to give it to Nick, he was going to put Nick on the place.” Upon cross-examination the witness seemed to be uncertain whether his father said he was going to rent the place to Nicholas or not, and in answer to the question: “Q. Did he use the word rent or not? A. I don’t know he might have said rent.” The witness thereafter said he didn’t think the word “rent” was used.
    The witness Carter testified that plaintiff talked to to him and told him: “He bought a farm, his Perry County eighty acre farm for Nicholas and he said he gave it to Nicholas, and after his death it belonged to Nicholas.” The witness Roberts testified: “Why, he told me that he had bought Nicholas and John a place, and Nicholas was not doing to suit him and he was going to be boss.” This was a conversation between witness and plaintiff about the trouble they were having in their respective families, and upon cross-examination witness admitted his hearing was not very good. Plaintiff denied that he had this conversation with this witness.
    Pope & Cook, for appellant.
    J. Paul Carter and A. R. Dry, for appellee.

      Abstract of the Decision.
    1. Landlord and tenant, § 21*—whether relation of landlord and tenant exists as question for jury. In an action of forcible detainer, held that it was a question for the jury whether the relation of landlord and tenant existed between plaintiff and defendant.
    2. Appeal and erbob, § 1413*—when verdict will not be set aside as against weight of evidence. A verdict will not be set aside as against the weight of evidence where two juries have found for the plaintiff.
    3. Forcible entbt and detainee, § 25*—when equitable defense waived. In an action of forcible detainer, held that defendant had waived any right which he may have had to make an equitable defense.
   Mr. Justice McBride

delivered the opinion of the court.


text:
    Clay Frechett, Administrator of the Estate of Lewis W. Johnston, Deceased, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Jury, § 50

      —when discharge of jury within discretion of court. The matter of discharging a jury after the trial of the case has been started, upon the ground that one of the jurors is related to one of the attorneys, lies in the discretion of the trial court.
    2. Jury, § 50

      —when discretion to discharge jury not abused. The trial court did not abuse its discretion in refusing to discharge the jury after the trial had been started on the ground that one of the attorneys was related to one of the jurors, where the affidavit in support of the motion did not clearly disclose the relationship, and the attorney immediately withdrew from the case upon the making of the motion.
    3. Evidence, § 228

      —when testimony of deceased witness at former trial may be admitted. The testimony of a witness upon a previous trial, as incorporated in the bill of exceptions, may be read upon a second trial where the witness at the time of the second trial is deceased, and the court reporter, who took the testimony at the former trial, testifies that he took such testimony, that it was, to the best of his knowledge and belief, true and correct, and that his notes were accidentally burned, as this did not constitute a reading from the bill of excepions. . (Distinguishing Illinois Cent. R. Co. v. Ashline, 171 Ill. 318.)
    4. Railroads, § 733

      —when evidence sufficient to establish hilling of person by train. In an action for death of a person alleged to have been killed while attempting to cross a railroad track on a path near a station, evidence. held sufficient to establish that deceased was' killed by one of defendant’s trains.
    5. Pleading, § 431

      —what does not constitute variance. There is no variance between the declaration and the proof where the allegations of the declaration are proved substantially in the manner alleged.
    6. Railboads, § 509

      —who is not trespasser. One who uses a much frequented cinder path across a railroad near a station in a populous part of a city is not a trespasser.
    7. Railroads, § 588

      —whether railroad company guilty of wilful and wanton conduct in operation of train as question for fury. In an action for the death of a person who was killed by a train while attempting to cross a railroad track near a station in a populous portion of a city, held that it was a question for the jury, whether defendant was guilty of wilful and wanton conduct in the operation of its train.
    8. Railroads, § 583

      —when evidence sufficient to establish wilful and wanton conduct in operation of train. In an action for the death of a person who was killed by a train while attempting to cross the tracks of a railroad near a railway station in a populous portion of a city, evidence held sufficient to sustain a finding that the defendant was guilty of wilful and wanton conduct in the operation of its train.
    9. Trial, § 128

      —when comment on evidence in argument not improper. It is not improper argument for the attorney for the plaintiff, in action for the death of a person, who was killed while attempting to pass over railroad tracks near a station in a populous portion of a city, alleged to be due to reckless operation of a train of defendant’s, to state that if the engineer was indicted for murder and the evidence was the same as in the present case, he could not escape.
    •10. Trial, § 131

      —where conduct of counsel in commenting on witness improper. The conduct of counsel in calling a witness “poor Bice, commonly known as Burrhead Bice,” without any foundation in the evidence therefor, is improper.
    11. Appeal and error, § 1514

      —when improper conduct of coun

      sel not reversible error. While the conduct of counsel in calling a witness “poor Bice, commonly known as Burrhead Bice,” without any foundation in the evidence therefor, is improper, still such conduct does not constitute reversible error.
    12. Death, § 67

      —when damages not excessive. In an action for death of a man sixty years of age who had been earning $1,000 per year, a verdict for $8,000 held not excessive.
    13. Appeal and error, § 1539

      —when giving of inapplicable instruction not prejudicial error. The giving of an instruction defining negligence, when no 'such question is involved in a case, does not constitute prejudicial error where it could not have affected the result of the case.
    14. Railroads, § 593

      —when instruction not erroneous as depriving defendant of defense that plaintiff was trespasser. In an action for death of a person killed while attempting to cross the tracks of a railroad on a much frequented path near the station in a village, an instruction which required the jury, as a prerequisite to a verdict for plaintiff, to find that the train was operated in a wilful and wanton manner, as defined in other instructions, was not erroneous as depriving the defendant of the defense that deceased was a trespasser, as, if the act was wilful and wanton, the mere fact that deceased was a trespasser was immaterial.
    15. Instructions, § 138

      —when refusal of instruction as to immaterial matter harmless. It is not prejudicial error to refuse an instruction directing a verdict for want of proof of an immaterial matter.
    16. Instructions, § 151

      —when not error to refuse requested instruction. It is not error to refuse an instruction covered by other given instructions. ,
    Appeal from the Circuit Court of Pulaski county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    L. M. Bradley, W. W. Barr and Charles E. Feirich, for appellant; Blewett Lee and W. S. Horton, of counsel.
    Wall & Martin and James Lingle, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McBride

delivered the opinion of the court.

Appellee obtained a judgment against the appellant in the Circuit Court of Pulaski county, which is sought to be reversed by this appeal.

The declaration as originally filed consisted of five counts. The court directed a verdict for the defendant at the close of plaintiff’s evidence as to all of the counts except the second count and the trial proceeded upon the second count. The second count alleges that the railroad of appellant passed through the Village of Ullin, a densely populated community, and crossed a certain traveled way in said village used by the public as a crossing for pedestrians, at a point a short distance north of the passenger station at "Ullin, and had been "so used for fifteen years, and as deceased was traveling from his place of business, over appellant’s railroad at the place aforesaid to his residence, appellant by its servants drove a certain train towards the traveled way, and while deceased was rightfully traveling upon said traveled way appellant wilfully, wantonly and negligently drove and managed the said train, in that the locomotive was without a headlight although dark, and was running at a reckless and dangerous rate of speed in Ullin, to wit, forty-five miles per hour, and no bell or whistle sounded, and that by and through the carelessness, wantonness and wilful negligence Johnston was killed.

This case was decided by this court at the March Term, 1914 (188 Ill. App. 377), upon substantially the same facts (barring two or three matters which will be noted hereafter) as appear in the present record, but as the statement made by the court at that time was not published in full it will be here repeated: “The facts in this case, practically undisputed, are, that on the 25th day of January, 1913, appellant’s railroad extended through the Village of Ullin, a town of from nine hundred to one thousand population, from the north to the south and about the center of the village north and south was appellant’s depot, on the east side of the tracks fronting west towards its tracks. The track next the depot known as northbound track, the second track from the depot the southbound track; third track from the depot the passing track and the fourth track from the depot house track.

There is no street across the right of way, east or west, nearer than two hundred feet south of the depot, and another street two-hundred fifty feet south of this one. That immediately west of the house track and extending south past the northeast comer of the depot, is a cattle pen; on the right of way of appellant immediately north of the cattle pen, and about twenty-five feet north of the depot, is a cinder walk from the street-, running north and south on west side of right of way, and extending east on right of way to west side of passing track. The cinders to build this walk were furnished by appellant and constructed under directions of village authorities several years ago, and used since by pedestrians. Immediately north of this cinder walk is a coal shed. The walk, or traveled way, as described in the declaration, is between the coal shed and cattle pen on the right of way of appellant. There was no filling in between the rails of the passing track, switch or southbound track, or between southbound and northbound tracks. Extending north from depot to opposite this cinder path appellant had constructed a board platform. The passing track was used for storing cars and this 'cinder path was frequently blocked with such cars. It'was at times opened up by appellant at the request of authorities. There were cars standing upon it at the time of the accident and for an opening at that time a person crossing would travel about two cars length, south.”

Three freight trains going south passed through Ullin on the morning in question, between 5 and 7 o’clock. The first two were through trains, the first one passing at from 5:30 to 6 o’clock and the second and third a little later. “The deceased, Johnston, on the morning in question, a man of about sixty years of age, and living about two hundred fifty feet northwest from the depot, left his residence at about 5:30 o’clock with a lantern to go to his place of business on the east side of the track. His usual way across the right of way was over the cinder path and by the depot. Aside from the loss of an eye, he was a strong healthy man for his years, and had as members of his family at the time, his wife, one son, one daughter unmarried, one daughter married, wife of appellee, and one grandchild. His business was operating’ a hoop factory from which business he had an income of about $1,000 per year. It is the contention of appellee that deceased was killed by the first train going south that morning, in charge of engineer Briggs. The witnesses differ as to the time this train went through and the time Johnston was found lying on the west side of the southbound track, from eight to forty-live feet south of the cinder path. Some of the witnesses make it as early as 5:30, and some as late as 6:30 a. m., but the weight of the evidence tends "to show that it passed throug’h before 6 o’clock; that this train was running without a headlight, at a speed of twenty-five to forty miles per hour, and some of the witnesses say it was dark, or just breaking daylight, and foggy. It appears from the evidence that the principal injury received by the deceased was upon his hip and caused a hole to be made' therein, which appellant contends could not have been made by the train.”

The theory of appellee in the trial of this case is, that the deceased was killed by reason of the wilful, wanton and reckless management by appellant’s servants of the train which struck the deceased and killed him. The appellant contends that the evidence is not sufficient to warrant a verdict and that the court committed several errors in the trial of this case. The first error assigned is upon the refusal of the court to discharge the jury after two of plaintiff’s witnesses had been examined, for the reason, that the case had been conducted by James Lingle, Wall and Martin as attorneys for appellee during the selection of the jury and that after the jury had been selected one C. S. Miller, an attorney of Mound City, also appeared as' attorney for the plaintiff, and that he had a blood relative and a close personal friend upon the jury. It does not, however, appear from the affidavit how closely related they were. Upon the presentation of this affidavit motion was made to discharge the jury. Immediately upon the making of the motion C. S. Miller announced to the court that he would withdraw from the case, and did so, and thereupon the court overruled the motion. We think that the matter of discharging the jury was purely in the discretion of the court, unless such facts were presented as to show an abuse of this discretion, and we see nothing in this affidavit and the action of the court to indicate an abuse of discretion, and the court did not err in overruling the motion. “Whether the trial court will grant leave after the trial of the case is entered upon, to withdraw a juror and continue the case, rests in the sound discretion of the trial court, and the ruling of the trial court in such case will not be reviewed by the Appellate or Supreme Court, except in case of great abuse.” Crane v. Blachman, 100 Ill. App. 565; Morrison v. Hedenberg, 138 Ill. 22.

It is next urged that an error was committed in permitting the testimony of the deceased witness Flowers to be read to the jury. Flowers was a witness upon the former trial and at the time of the present trial was deceased. The reporter took his testimony in shorthand at the former trial and transcribed it and it was incorporated in the bill of exceptions, and during the present trial, after proof of the decease of the witness, the reporter was placed upon the stand and testified to having taken his testimony at a former trial and that he transcribed the testimony and that

it was, to the best of his knowledge and belief, true and correct, and that his notes had been accidently burned. It is contended by appellant that this was a reading from the bill of exceptions and was within the prohibition laid down in the case of Illinois Cent. R. Co. v. Ashline, 171 Ill. 318. We do not think this point is well taken as in that case they read from the bill of exceptions without making any proof as to the correctness of the testimony. In this case proof was made that the transcript contained the testimony of the witness Flowers, and we think that the reporter, in effect, testifies that these were the statements of the witness upon the former trial, and that the court is fully sustained in its ruling- by the cases of Luetgert v. Volker, 153 Ill. 387; Hereford v. People, 197 Ill. 222.

It is next insisted that the verdict is manifestly against 'the weight of the evidence. We think that the evidence in this case at least tends to show that on the morning in question it was dark, or at least not light, and foggy and that the train was running at a high and dangerous rate of speed, without a headlight, through a populous village, in a reckless manner. That the deceased was traveling over appellant’s road at or near the usual place to which pedestrians had been accustomed to use in passing over the road, and while there is no evidence directly showing that he was right upon the traveled way, yet there is some evidence tending to show a scraping of the cinders such as might be done by the pushing- of a body or anything of that character, very near this traveled path, together with the habits of the deceased, and other circumstances from which the jury would be warranted in finding that he was struck at this place, besides it also appears that this crossing was very close to the depot and that it was used by many people in passing from one side of the town to the other, and to such an extent as would require the appellant to operate its trains through this place in a reasonably careful manner and not in a reckless one as this was operated.

It is also said that as there were no bones of the body broken but simply a hole found in the hip of the deceased, that there was not sufficient proof that he was struck and killed by the engine but that he might have been killed by a foot pad. We cannot say that such facts were developed upon the trial of this case as to warrant this court in saying that the jury was manifestly wrong in finding that the deceased was killed by a train of appellant and shall not undertake to say so. This was a question of fact for the jury and we are not disposed to disturb their finding upon this fact.

It is next insisted that the evidence does not sustain the allegations of the declaration. In this, that the declaration alleges that deceased was traveling along and upon said traveled way and while he was so traveling across the railroad he was struck and killed by a locomotive engine of appellant. In fact the question of the traveled way and that the deceased was on it when he was struck was the gravamen of the charg’e and the evidence wholly failed to establish this charge. This too, was a question of fact which the law has placed in the hands of the jury to determine, and while it is true, as contended by counsel for appellant, that the evidence shows that upon the track west of this and at the termination of the cinder path, there were cars standing on the cinder track, yet there is nothing to show he did not pass around these cars and back to the usual traveled route, and as above stated there were some indications as shown by the witnesses that the cinders were disturbed, from which the jury could reasonably infer that he was caught at this traveled way. Many authorities have been cited in support of this contention, that there was a variance. While it is true that in some cases the courts have gone to the extreme in holding that the averments must be proven exactly as. alleged in the declaration, but these cases are very few and the greater weight of authorities is that if the allegation is proven substantially in the manner alleged in the declaration that this is sufficient.

In appellant’s fifth instruction this question was submitted directly to the jury when it was told that unless the deceased, “Was struck while walking upon a certain traveled way” that you must find the defendant not guilty. We think this was a question of fact for the jury. That it was submitted fully and fairly to the jury by appellant’s instruction and that the jury by its verdict must have determined that he was upon the traveled way at the time he was struck. We are not disposed to hold in the face of this finding that the allegations of the declaration were not proven.

It is next insisted that Johnston was a trespasser and under the facts proven there could be no recovery. Several cases have been referred to where the court, has held persons to be trespassers, and with the holding of the Supreme Court in the several cases referred -to we have no complaint but upon an examination of each and every case it will be found that there were some peculiar circumstances surrounding the case that warranted the court in saying that the parties were trespassers but we do not think such circumstances exist in this case. Counsel for appellant insist that this court erred in its former decision herein in holding that Johnston was in a place where he had a right to be, and that the evidence as to the use of this traveled path was improperly admitted. We see no reason to change our views in this matter and still adhere to what was said in the former opinion wherein the court said: “In the case before this court evidence was offered as to the locality, streets and cross streets, location of depot, and acts of the company in the building of the cinder walk, tending to prove that the traveled way was by the company’s invitation, which, if established by a preponderance of the evidence would entitle the deceased to treatment by the company of a person rightfully on this path, and under the authorities and from a consideration of this record, that evidence was properly admitted.

It is next urged that the contention that Johnston was rightfully upon the tracks was. not proven. There was evidence and admitted facts which tended to prove he was rightfully on the tracks, or, qualifying this statement somewhat, “where the company might reasonably expect persons to be.” This traveled way was connected with the depot platform and was used by the people not only in passing from one part of the town to the other but in reaching the depot platform, and we do not believe that the conditions there existing were such as to warrant the appellant in regarding such persons as were at or near this traveled way as being trespassers. The appellant’ in operating its trains was bound to know that persons were liable to congregate or travel across the road at this place, and that it had no right to operate its trains without a headlight and at a time when it was dark and foggy at a high and dangerous rate of speed, as the evidence here tends to show it did do. Counsel for appellant have quoted quite extensively in their brief from the case of James v. Illinois Cent. R. Co., 195 Ill. 327; and Illinois Cent. R. Co. v. O’Connor, 189 Ill. 559. We do not regard these cases as controlling the case now under consideration. In the James case, supra, the court expressly says that, “She attempted to cross the tracks in a place where nobody was invited to cross and where she had no business to be”; and in the O’Connor case, supra, it is said by the court that it is not shown that the act of the defendant therein was wilful or wanton; that such circumstances did not exist as to constitute wilfulness or wantonness. We believe, however, that in the case at bar that under the evidence the deceased was invited and permitted to cross the tracks at this place and that it was at such a populous place as required care upon the part of the servants of appellant in operating the trains through the village. “Upon the right of way of the railroad where the public are not invited or authorized to go for the transaction of business with the railroad company, those in charge of the train must have knowledge both of the presence of the trespasser and of his dangerous situation, but depot grounds and platforms provided by the railroad company for the use of the public in the transaction of its business, where persons have a right to be for legitimate purposes and where they may reasonably be expected, are quite different. * * * ‘The fact of general use by the public of a track, so as to create a probability of their presence, might make an act which would otherwise be merely negligent so reckless as to indicate a disregard for life or a general disposition to do injury.’ Considering alone the evidence offered by the plaintiff, it would justify an inference- of such a reckless disregard of the safety of persons who might be on the cross-walk and platform at the depot as would amount to wanton and wilful conduct, and on that ground the court did not err in submitting the issue to the jury.” Neice v. Chicago & A. R. Co., 254 Ill. 595. And in a later case the Supreme Court has said: “It has been held by this court, and almost universally, that the law casts no duty upon a railroad company to keep a lookout for trespassers on its tracks in the open country, remote from public crossings, cities and towns. This is conceded and requires no citation of authority. Exceptions to this general rule are (1) places where the railroad company has permitted the public to travel along or over its track for a considerable period of time and a considerable number of people have availed themselves of such use, and (2) where the railroad runs through populous portions of a city, where people frequently go upon or pass over the track with knowledge of the company or for such a length of time that the company is chargeable with knowledge.” Joy v. Chicago, B. & Q. R. Co., 263 Ill. 465.

We think that the court was warranted in submitting to the jury for its determination the question as to whether or not the appellant was guilty of wilful and wanton conduct in the operation of this train, and the jury having found that it was guilty of such conduct we are not disposed to disturb such finding.

The exception taken to the improper argument is without merit. The attorney in the argument simply stated if this, man was indicted for murder and the evidence should be the same as here, he could not escape. This was simply a matter of presenting his view of the conclusiveness of the evidence, and while the statements made by Mr. Wall wherein he is charged to have said “poor Bice, commonly known as Burrhead Bice,” are not of a character to be commended, yet we are unable to say that they are erroneous.

It is also urged that the damages are excessive. The evidence shows the deceased to .have been quite a capable man and of the age of about sixty years, industrious, with an earning capacity of about $1,000 per year and we can see nothing in this record, nor has anything been pointed out, that tended to show the jury were inflamed by passion or unduly prejudiced or that anything occurred during the trial that was calculated to inflame the minds of the jury, and unless something of that character is shown to exist, under the repeated decisions of this and the Supreme Court, the question of the amount of damages was for the determination of the jury. We can see no reason in this case for pronouncing the verdict so excessive as to require a reversal on that account. It is next urged that the court erred in giving of instructions for appellee and in the refusal of instructions for appellant.

The objection urged to appellee’s fourth given instruction is that it defines negligence when the question of negligence was not involved in the ease. The criticism is well taken but the error is not of such character as in our opinion to affect the result of the case.

It is next urged that the court erred in giving appellee’s instruction No. 8, in this, that: “Appellant by this instruction was deprived of its defense that Johnston was a trespasser.” By this instruction the jury were required to find that the train was operated in a wilful and wanton manner as defined in the instructions given in the case. This required a consideration of the speed, condition of lights, place where accident occurred and all of the surrounding circumstances, and when all were considered, if the act was wilful and wanton, then the fact that he was a mere trespasser as pointed out in this opinion would not relieve defendant of its responsibility; the question of the position of deceased was an element to be taken into consideration in determining whether or not the act was wilful and wanton.

Instructions Nos. 5 and 9, given on behalf of appellant, advised the jury that to create a liability the deceased must have been struck at the traveled way. We do not believe that the criticism upon these instructions are well taken. It is urged that the court erred in refusing appellant’s third and fourth refused instructions, which advise the jury that the allegation of due care was material because it had been alleged and should have been proven. This allegation was not in fact material under the count of the declaration on which the case was tried, and appellant was not entitled to an instruction directing a verdict for the defendant for want of proof of an immaterial matter. '

The proposition contained in refused instruction No. 4 is covered by other given instructions for appellant.

The refused instruction No. 7, complained of, is given in substance in appellant’s ninth instruction.

There are a number of other refused instructions to which attention is called in a general way, but the propositions covered by all of these instructions have been determined by the court in this opinion, or they have been given in other instructions, so that we do not deem it necessary to comment upon each instruction separate.

The instructions taken as a whole, in our judgment, presented the law-governing this case fairly and fully to the jury and we can see no reason for complaint upon the instructions.

After a careful consideration of this record, we are not able to say that the court committed any reversible error in its rulings, or that the verdict of the jury was manifestly against the weight of the evidence, and the judgment of the lower court is affirmed.

Judgment affirmed.


text:
    Lake Temple by S. C. Temple, Appellee, v. Alton, Granite & St. Louis Traction Company, Appellant.
    (Not to be reported in full.)
    Appeal from the City Court of Alton; the Hon. James E. Dunegan, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded.
    Opinion filed December 1, 1915.
    Statement of the Case.
    Action by Lake Temple, by S. C. Temple, his next friend, plaintiff, against the Alton, Granite and St. Louis Traction Company, defendant, for damages for personal injuries sustained as a result of a collision between an automobile which plaintiff was driving and defendant’s street car. From a judgment for plaintiff, defendant appeals.

      Abstract of the Decision.
    1. Street railroads, § 140

      —when instruction authorizing recovery for negligence not charged in declaration erroneous. In an action against a street railroad for damages for personal injuries sustained as a result of a collision between an automobile driven by plaintiff and defendant’s street car, in which the declaration alleged negligence, in operating the car at a high rate of speed and in failure to sound a bell, an instruction that the plaintiff could recover if the jury believed that the defendant operated its car in a careless and negligent manner, held erroneous as not confined to the negligence charged in the declaration, since there was evidence that the car was operated without a headlight, and the jury might find that the defendant was negligent in this respect.

      The first instruction for plaintiff was as follows: “The court instructs the jury that if you believe from all the evidence in this case that the plaintiff was exercising all due care and caution for his own safety and the safety of others at. the time of the injury complained of, or if you further believe from all the evidence in the case that the defendant through its servants so operating an electric car was careless and negligent at the time and place, namely, the intersection of Second and Ridge streets, so as to cause the aforesaid injury, if you beíieve the plaintiff was injured, then your verdict should be for the plaintiff in such amount as you may believe from the evidence he is entitled to ' receive, not to exceed $5,000, the amount claimed in the declaration.”
    The court further instructed the jury: “And if you further believe from the evidence that the defendant failed to give the required signal in approaching said crossing by ringing a bell or sounding a gong, and that such failure contributed to the accident, then your verdict should he for the plaintiff in such an amount as you believe from the evidence he is entitled to receive, not to exceed the amount claimed in the declaration.”
    Williamson, Burroughs & Ryder, for appellant.
    B. J. O’Neill, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McBride

delivered the opinion of the court.

2. Damages, § 209 —when instruction erroneous because not limiting damages to compensatory amount. In an .action against a street railroad for damages for personal injuries sustained as a result of a collision between an automobile driven by plaintiff and defendant’s street car, an instruction that if the plaintiff was entitled to recover the verdict should be for such sum as the jury might believe from the evidence he was entitled to receive, not exceeding the amount stated in the declaration, held erroneous as not limiting the damages to a compensatory amount.

3. Street railroads, § 146 —when instruction erroneous because allouHng recovery for act not proximate cause of injury. In an action against a street railroad for damages for personal injuries sustained as a result of a collision between an automobile driven by plaintiff and defendant’s street car, an instruction that if the jury believed from the evidence that the defendant failed to give the required signal upon approaching the crossing by ringing a bell or sounding a gong and that such failure contributed to the accident, held erroneous as allowing a recovery for an act of negligence which was not the proximate cause of the injury.

4. Negligence, § 47 —necessity that negligence be proximate cause of injury. It is not sufficient to create a liability for negligence that the act contributed to the injury, hut it must have been the proximate cause of the injury.


text:
    Toledo, St. Louis & Western Railroad Company, Plaintiff in Error, v. East St. Louis & Suburban Railway Company, Defendant in Error.
    1. Appeal and error, § 1491

      —when exclusion of evidence reversible error. In, an action to recover for breach of a contract between railroads providing that defendant should have the right to cross the tracks of plaintiff at grade but should before crossing “flag” such crossing, the exclusion of parol evidence that the term “flagging” as used in the contract had a special meaning, held reversible error.
    2. Contracts, § 198

      —when evidence admissible to explain the word “flagging.” The term “flagging” as used in a contract between railroads with reference to the right of one railroad to cross the tracks of the other at grade is of a character requiring explanation of its special meaning as so used.
    3. Contracts, § 198

      —when evidence competent to explain meaning of words. Parol evidence is competent to explain not only the technical words of art or science, but also words and phrases having a local or special meaning in a particular calling, trade, business or profession.
    4. Evidence, § 319

      —when evidence as to meaning of words does not tend to contradict or vary instrument. Parol evidence that words used in a written instrument have a technical or special meaning as so used does not tend to contradict or change the instrument.
    5. Contracts, § 181

      —how intention of parties to instrument containing technical terms ascertained. Evidence of a technical or special meaning of words used in a -written instrument is the only method of ascertaining the intention of the parties in entering into the agreement, the presumption being that such terms were used according to their understood meaning in the place or business with reference to which the contract is made.
    6. Contracts, § 197

      —when presumed parties made contract with reference to business customs. One entering into a contract in the ordinary course of business is presumed to have done so with reference to any existing general usage or custom relating to such business.
    7. Evidence, § 403

      —who should explain words having special meaning. Where a term used in a written instrument has a special meaning of which people living in one place have a better knowledge than those living in another place, it is necessary that the term be explained by those having the better knowledge of its-meaning.
    8. Evidence, § 154

      —what constitutes an admission that meaning of term is doubtful. In an action to recover for breach of a written contract, a party impliedly concedes that the meaning of a term used therein is doubtful by offering evidence tending to show the meaning of such term, without showing that plaintiff knew of or acquiesced in "the offer.
    9. Evidence, § 403

      —when testimony of experts admissible to explain term, “flagging a crossing.” In an action to recover for breach of a contract between railroads providing that defendant should have the right to cross the tracks of plaintiff at grade, but before crossing should “flag” such crossing, testimony of expert witnesses held proper to explain what was understood by railroad men by the term “flagging a crossing.”
    10. Instructions, § 115

      —when instruction erroneous as presenting false issue to jury. In an action to .recover for breach of a written contract between railroads providing that defendant should have the right to cross the tracks of plaintiff at grade on certain conditions, in consideration of which it should indemnify plaintiff for loss sustained “by reason of the condition of the crossing or by the failure” of defendant to comply with the requirements of the contract, where the act relied on as breach was the failure of defendant to indemnify plaintiff for a judgment recovered against it for personal injuries sustained in a collision at such crossing between a train of plaintiff and a car of defendant, an instruction that plaintiff could not recover if the proximate cause of the accident was the negligence of plaintiff without reference to the conduct of defendant, held to present a false issue to the jury, the issue being whether defendant had complied with its contract, and there being no issue as to the negligence of either party.
    11. Contracts, § 393

      —how fury should be instructed in action for breach of contract. In an action to recover for breach of a written contract, it is necessary to present to the jury fully and fairly the issue whether defendant has complied with the contract, with a proper interpretation of the terms used in the contract, where such terms are of the character to require such interpretation.
    Error to the City Court of East St. Louis; the Hon. W. M.'Vandeventer, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded.
    Opinion filed December 1, 1915.

      C. E. Pope, for plaintiff in error; Charles A. Schmettau, of counsel.
    Barthel, Farmer & Klingel, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section numbér.

      See Illinois Notes Digest, Vols. XI to XV, and. Cumulative Quarterly, same topic and section number.

   Mr. Justice McBride

delivered the opinion of the court.

This action was commenced by the plaintiff in error, hereinafter called the plaintiff, against the defendant in error, in assumpsit, upon a contract entered into between plaintiff and the Mississippi Valley Transit Company, assignor of the defendant. Judgment was obtained against the plaintiff for costs and it prosecutes this writ of error.

The agreement referred to was made on the 7th of October, 1901, and provided by its terms that it should be binding upon the parties thereto, their successors and assigns, and the defendant is the assignee of the Mississippi Valley Transit Company. The contract was entered into for the purpose of permitting the Mississippi Valley Transit Company and its assigns to cross plaintiff’s right of way and tracks on the line of the first public highway crossing west of Edwards-ville. There are several provisions in the agreement but only such of them as are in question here will be given.

Section 4 provides “that the second party shall bring all of its cars to a stop before attempting to cross the tracks of the said first party, and said cars shall remain standing until the conductor in charge of said car of the second party flags said crossing.”

Section 5. “The trains of the party of the first part shall have the right of way at all times over the said crossing in preference to any ears or trains of the party of the second part, and the party of the second part agrees to adopt such regulations for the passage of the crossing by the cars as the party of the first part may demand and approve.”

Section 7. “The party of the second part assumes full responsibility for the proper maintenance and operation of the crossing, and will indemnify and save harmless the said party of the first part, its successors and assigns, against all loss, damage, costs, expenses, actions, claims or demands whatsoever which it or they may at any time suffer or be subject or liable to by reason of the condition of the crossing or the failure of the said second party to flag, as provided for in section 4 of this contract.”

Section 8. “It is the intent and meaning of this contract that the operations of the railroad of the party of the first part are not to be hampered or inconvenienced by the operations of the party of the second part, and all expenses incidental to maintaining, and operating the said crossing is to be at the sole expense of the party of the second part.”

The party of the first part mentioned in said agreement is plaintiff in this suit and the party of the second part is the assignor of defendant.

It appears from the record in this case that about eight o’clock of the night of April 20, 1911, one Anna Perenchio became a passenger upon defendant’s car and when the car approached plaintiff’s railroad it stopped within about ten feet of the railroad and the conductor of defendant went upon plaintiff’s railroad and then signaled the motorman of defendant’s car to cross over and while crossing over the car stopped suddenly and was detained from one to two minutes and while on the track a freight train backed up against the car and injured Anna Perenchio.

There is some dispute as to the conditions at the time defendant attempted to cross the railroad. The conductor of defendant’s car says that when he went upon the railroad track he saw no car or train on the track. There are two witnesses or more who testified that he stated that he saw the freight train backing up but thought he could pass over before the freight train reached the crossing. This conversation is denied by the conductor. There is a conflict in the testimony, also as to whether or not there was a brakeman upon the rear car, and as to whether they had lanterns. Anna Perenchio thereafter brought suit against the plaintiff and obtained a judgment against it for the amount of $6,500 • which was paid by the plaintiff and the plaintiff now seeks to recover this amount from the defendant under the contract above set out.

There are several counts in the declaration filed by the plaintiff herein but they are all básed upon the sections of the contract above set forth. The first count alleged as a breach that the defendant drove the car on the tracks of the plaintiff without flagging said crossing in accordance with the terms and pro-' visions of said agreement, while a certain engine and cars of the plaintiff were then in motion and approaching said crossing. The second count alleges that it became and was the duty of the defendant to cause said crossing to be flagged and ascertain before attempting to drive its said car across plaintiff’s tracks that it could do so in safety and not in any manner hamper or inconvenience plaintiff by the operation of said car, and then avers that it. drove said car on said crossing in front of a moving train. The sixth count is, in substance, the same as the first. The seventh count alleges that plaintiff had the right to pass over said crossing without being hampered and impeded by the cars of the defendant, and that the servants of the defendant drove such car upon the tracks of plaintiff without flagging said crossing in accordance with the terms and provisions of the said agreement, and without the engineer or motorman in charge of the engine or motor of said car first having positively ascertained that the way was clear, and that the said car of the defendant might proceed in safety.

It is the contention of plaintiff that in order to flag said crossing in compliance with the provisions of said agreement, it became necessary to stop the car and for the conductor or motorman to pass upon plaintiff’s track and ascertain positively that no train was approaching and that it could with safety pass over plaintiff’s tracks before attempting to do so.

During the progress of the trial the plaintiff contended that the word “flagging,” as used in said contract, had a special meaning as applied to a contract between a steam railroad and an electric road when used in this connection, and offered to prove by Edward C. Kramer who claimed that he knew the meaning of that term under such conditions, and that for the last seventeen years he had had occasion as attorney to examine, prepare and pass upon crossing contracts, and after stating that he knew the meaning of that term as applied to such contracts- he was asked to state to the jury what it meant, which was objected to by defendant, the objection sustained, and then plaintiff stated that he wished to prove by this witness that the term “flagging” as used in the contract in question means that the conductor or other person in charge of such electric car shall go out upon the tracks and look both ways and ascertain if he can with safety permit his car to cross the tracks; that it is his duty in order to properly flag the crossing to positively ascertain whether or not trains are approaching in either direction on the railroad track. To this offer the objection was sustained and the plaintiff excepted. We are of the opinion that the refusal of the court to permit this term to be explained to the jury is reversible error. It appears from the statement of the. witness that it has a special meaning when applied to matters of the character involved in this suit, and it seems to us that it is that character of a term that would require explanation. It is said by the Supreme Court of this State: ‘ ‘ The testimony of witnesses is admissible' to explain not only technical words of art or science, but words or phrases having a local meaning or a special meaning in a particular calling, trade, business or profession. Such evidence does not contradict or change the written instrument. The presumption is that such terms were used according to their understood meaning in the place or the business with reference to which the contract is made, and evidence as to such meaning is the only method of ascertaining the intention of the parties in entering into the agreement.” After citing several authorities the court further says: “A person entering into a contract in the ordinary course of business is presumed to have done so in reference to any existing general usage or custom relating to such business.” Steidtmann v. Joseph Lay Co., 234 Ill. 88. The position of counsel for defendant is, that the language of the contract itself is sufficiently defined to indicate what it means and, if not, the proper interpretation would be the interpretation the parties themselves have put upon it during the ten years it has been in force. He also urges as a reason:. “That flagging the crossing, especially in St. Clair County, from which the jury was drawn, is a very common and well known performance. This case was tried in East St. Louis, into which city no one can ride on an electric car without seeing a crossing flagged two or three times.” If the term is of the character that the people who live in St. Clair County would have a better knowledge of its meaning than other people then it would seem necessary for an explanation of the terms by those who had knowledge of such things. Before the trial closed, the defendant itself conceded, at least to some extent, that its meaning was doubtful for it offered to show how the parties themselves had interpreted this term by placing the motorman and a number of other witnesses upon the stand and asking them what had been the practice for several years last past with reference to flagging a crossing. This offer was made without showing any knowledge or acquiescence of the plaintiff therein, and the objection was sustained and no error has been assigned thereon. It was held that it was proper to permit expert testimony as to what was the meaning by “necessary switchmen and signals.” Louisville & N. R. Co. v. Illinois Cent. R. Co., 174 Ill. 457. Also that the testimony of expert railway men was competent to explain and define what was meant by the term “yard” in connection with the operation of railroads. Garrity v. Catholic Order of Foresters, 148 Ill. App. 194; and many other cases have been cited and referred to where the meaning of the terms was less doubtful, in our opinion, than the meaning of the term here sought to be interpreted, and it seems to us that it would be highly proper to permit expert witnesses to explain what was understood by the railroad men with reference to the term “flagging a crossing.”

It is also contended that the court erred in the giving of defendant’s first instruction, which is as follows: “The court instructs the jury that if you believe from the evidence that the sole and proximate cause of the accident or collision complained of in this case was the failure of the plaintiff, through its agents in charge of its train, to exercise due care in the management and handling of such train, then you should find the issues for the defendant, East St. Louis & Suburban Railway Company.” It will be observed that this instruction directs a verdict and bars the plaintiff from a recovery herein if it was guilty of negligence and due care in the management and handling of such train, without reference to the conduct of the defendant. The issue to be tried in this case is not “Was the plaintiff negligent” but “Has the defendant complied with its contract”? And if the defendant has complied with its contract then the plaintiff cannot recover whether it was ever so careful or ever so negligent. We agree with counsel that this instruction presented a false issue for the jury to try. All that the defendant had to do to relieve itself of responsibility was to show that it complied with its contract by flagging the crossing*.

We do not believe that this case has been tried upon the issue as presented by the pleadings and that if was necessary and proper to present to the jury fully and fairly the question as to whether or not the defendant had fairly complied with its contract, under a proper interpretation of the terms thereof, where said terms are of the character to require such interpretation.

Oil account of the errors made by the trial court in the exclusion of the evidence and giving of the instruction referred to, we are of the opinion that there should be another trial, and the judgment of the lower court is reversed and the cause remanded.

Reversed and remanded.