author: Mr. Justice Dibell Mr. Presiding Justice Thompson,

text:
    Thomas N. Langan, Appellee, v. Milk’s Grove Special Drainage District No. 1, Appellant.
    Gen. No. 4,995.
    1. Demurrer—when does not sufficiently rely upon Statute of Limitations. A demurrer does not sufficiently rely upon the Statute of Limitations where it alleges that “it does not sufficiently appear from said petition * * * that the petitioner is not now barred by the Statute of Limitations from demanding the relief prayed for”; it is essential that the demurrer set up that the petition demurred to shows that the action is so barred.
    2. Mandamus—nature of action. Mandamus is an action at law and is governed by the same rules of pleading that are applicable to other actions at law.

      3. Mandamus—how defense of Statute of Limitations must Be made. To a petition of mandamus the Statute of Limitations must be specifically pleaded; it cannot be raised by demurrer to the petition.
    4. Mandamus—when laches not defense. Laches short of the statutory period of limitations is no defense to an action of mandamus.

    5. Mandamus—when demand upon drainage district sufficient. Held, that the demand averred in this case upon the drainage trustees, to alter, repair and modify the drainage district was sufficient.
    6. Dbainagb—what not required of dissatisfied landowner. A landowner demanding of drainage trustees that the district be repaired, altered or modified is not required to do the surveying and civil engineering necessary to determine just where the difficulty lies or just how much or kind of repairs would be sufficient to give the proper outlet insisted upon.
    Thompson, P. X, dissenting.
    Mandamus. Appeal from the Circuit Court of Iroquois county; the Hon. Fbank L. Hoopbb, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed in part and reversed in part.
    Opinion filed October 23, 1908.
    Statement by the Court. Thomas N. Langan filed a petition against Milk’s Grove Special Drainage District No. One of the towns of Milk’s Grove and Chebanse, in Iroquois county, praying for a writ of mandamus to compel the commissioners of said district to alter, repair and modify the drainage system of said district and to deepen and widen the main ditch between certain points specified and to deepen and widen two certain lateral ditches across the lands of the petitioner and to the place where they emptied into the main ditch, so as to provide an outlet of ample capacity to carry the water off the petitioner’s land and to drain the same so that petitioner’s land would receive the protection and benefit contemplated when the district was organized and when the lands were classified, and that they make a special assessment to meet the cost thereof. The district filed a general and special demurrer to said petition, which was overruled. The district elected to abide by its demurrer and there was a judgment awarding a writ of mandamus substantially in the terms of the prayer of the petition. This is an appeal by the district from that judgment.
    The petition stated that the district was organized February 26, 1885, under the Farm Drainage Act of 1879, for the purpose of constructing, repairing and maintaining drains, embankments and grades within said district for agricultural and sanitary purposes, by special assessment upon the property benefited thereby. An exhibit attached to the petition and made a part thereof contained a plat of the district and gave the classification of each forty-acre tract therein. The petition stated that the petitioner owned section 35 in township 29 north and of range 10, east of the third principal meridian, at about the center of said drainage district. From the plat it appears that he owned nearly one-twelfth of the lands of the district. The petition stated that the district adopted a system of drainage and built one main drain extending from the south end of petitioner’s land through the lower part of the district and to an outlet in Langham Creek, at the southeastern part of the district, and constructed laterals emptying into said main ditch, and among them two lateral open ditches crossing petitioner’s land from higher land. The petition showed that assessments had been made against the petitioner for over one-sixth of the entire cost of the work done, and that all said assessments were paid when due, besides several later assessments in repairing and maintaining the drainage system. The petition stated that .the whole of said section 35 is level land and that the central portion of it is low; that the purpose of said assessments was to furnish petitioner an outlet into which he might drain the waters off of his land and to carry off the waters brought upon his land by said two lateral ditches crossing his land from other lands above. The petition stated that said main ditch was not so constructed as to furnish an outlet for the water on petitioner’s land and for the waters brought upon his land by said lateral ditches; that the waters brought upon his land by said lateral ditches came from lands the surface of which is higher than petitioner’s land; that, owing to the narrowness and shallowness of the main ditch from the south part of petitioner’s land to. said creek, the waters brought upon petitioner’s land by said two lateral ditches remain upon petitioner’s land for such alength of time as-to destroy petitioner’s crops and grain grown on said lands to the amount of several thousand dollars each year; that this is caused by the narrowness, shallowness and incapacity of said main ditch running from the south part of said petitioner’s land to said creek; that said main ditch from petitioner’s land to the creek, by reason of error in the construction of the same, completely fails to furnish an outlet for the drainage of petitioner’s land and for carrying off the water brought upon said petitioner’s land by said two lateral ditches, and completely fails to furnish an outlet for the drainage of petitioner’s land as was originally contemplated by the construction of_ said drainage ditch, and that it is of little or no value to the petitioner for any purpose. The petition also alleged that the said two lateral ditches were constructed too narrow and too shallow through petitioner’s land to carry off from petitioner’s land and into the main ditch the water which the said two lateral ditches brought upon said land from lands above. The petition stated that if the main ditch was deepened and widened from a point where it crosses the east line of Milk’s- Grove township up to a point where the said two lateral ditches connect with the main ditch in the south part of petitioner’s land (which would be apparently about the upper one-third of the length of the main ditch), and if said two lateral ditches were deepened and widened fro'm the place where they emptied into the main ditch up through petitioner’s land to his west line, a complete outlet would be furnisked, as petitioner is informed and believes, to the drainage of petitioner’s land and for carrying off the water brought upon his land by said two lateral ditches. The petition further stated that at the time it was filed from the point where the two lateral ditches connect with the main ditch to where the main ditch intersects the east line of Milk’s Grove township, being about 10,700 feet in distance, there is a fall of about eight feet in the bottom of the ditch, and that said ditch could be deepened and widened sufficiently to give petitioner a complete outlet an,d carry off the water from petitioner’s land and the waters of said two lateral ditches, without interfering with the flow in the main ditch, and that an average fall of one foot for said distance would be amply sufficient to carry off said water. The petition further stated that, if the main ditch was so deepened and widened as to furnish a complete outlet as aforesaid, there would be an average fall in the bottom of said two lateral ditches of at least three feet, while an average fall of one foot would be sufficient. The petition further stated that in 1905 the district deepened and widened one of said lateral ditches, so as to cause more water to be brought upon petitioner’s land and to increase the already overtaxed capacity of the main ditch, commencing at the south part of petitioner’s land, and to cause more water to be brought in to stand on petitioner’s land. The petition further stated that the cost of modifying and changing the main ditch from the east line of Milk’s Grove township and deepening and widening it to where the two lateral ditches connect with it in the south part of petitioner’s farm, being a distance of about 10,700 feet, and deepening and widening the two lateral ditches from the place where the same empties into the main ditch in the south part of petitioner’s land up to the point where they intersect the west line of petitioner’s land, being a distance of about 2,000 feet, would be approximately $8,000. The petition further stated that the benefits accruing to the several tracts of land in said district, except petitioner’s land, far exceed the several assessments levied against the same; that there is no money in the treasury of the district; that it will be necessary to make an additional levy to raise the amount necessary to modify the drainage system so as to drain the land of petitioner and to carry off the water brought upon petitioner’s land by said two lateral ditches as contemplated in the organization of said district and the classification of said lands; that the benefits accruing to the several tracts of land in the district will far exceed the amount of the assessments made in completing the district, including the necessary change; that the petitioner has often requested the drainage commissioners and their predecessors in office to deepen and widen said main ditch from the east line of Milk’s Grove township up to and into the south part of petitioner’s land, and to deepen and widen said two lateral ditches from where the same empty into the main ditch in the south part of petitioner’s land up to where they intersect the west line of petitioner’s land, so that he might have an outlet to drain his land and to carry off the water brought thereon by said two- lateral ditches, and might receive the benefits contemplated by the organization of said district and construction of said drainage ditch, but they have refused and neglected so to do.
    A. F. Goodyear, for appellant.
    T. W. Shields, J. H. Carey and Frank J. Burns, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

It is urged that the" demurrer should have been sustained on the ground that some statute of limitations is a bar to this proceeding. All that the special demurrer contains on that subject is as follows:

“It does not sufficiently appear from said petition * * * 8. That the petitioner is not now barred by the Statute of Limitations from demanding the relief prayed for.”

This is not equivalent to saying that the petition shows that the suit was barred, but only that the petition does not show that the action is not barred. In a common law pleading the pleader is not bound to notice or guard against the Statute of Limitations in stating his cause of action. But if the ground of demurrer alleged had been that the petition affirmatively showed that the Statute of Limitations had run against the cause of action, yet that ground of demurrer would not be well taken for two reasons.

1. This is an action at law and it is governed by the same rules of pleading that are applicable to other actions at law. Cleary v. Hoobler, 207 Ill. 97; Mayor of Roodhouse v. Briggs, 194 Ill. 435; People v. Board of Trade, 193 Ill. 577; Chicago Great Western Railway Company v. People, 179 Ill. 441. In the case last cited it was said: “Mandamus is a common law action and in the circuit court is governed by common law rules as to pleadings.” Such also is the statute. Be-vised Statutes, chapter 87, section 4. In 1 Chitty’s Pleading 496, the rule is stated: “It is always necessary to plead the statute of limitations specially.” In Gunton v. Hughes, 181 Ill. 132, it is held that at law a defendant cannot avail of the Statute of Limitations by demurrer, even if it appears on the face of the pleading that the time fixed as a limitation has expired, but he must plead the statute specially and give the plaintiff the opportunity to reply any special matter which prevents the bar from attaching. Wall v. C. & O. R. R. Co., 200 Ill. 66, is to the same. effect.

2. The petition shows that the district deepened and widened one of the lateral ditches across petitioner’s land in 1905 and thereby increased the flow of water from the lands above to and upon petitioner’s land, and that the same would stand there for lack of sufficient width and depth of the main ditch from the south part of petitioner’s land for about 10,700 feet to the east line of Milk’s Grove township, over which distance a fall of eight feet permits complete relief to be given to petitioner. It is not claimed that any Statute of Limitations has run since 1905 and therefore the Statute of Limitations is not a defense under a demurrer confessing the foregoing allegations.

Laches was alleged as a ground of special demurrer. We are of opinion that what was last above said disposes of that defense.

It is insisted that there is not sufficient allegation of a demand. Almost the same language upon that .subject used in this petition was used in the petitions in Peotone Drainage District v. Adams, 163 Ill. 428, and Kreiling v. Nortrup, 215 Ill. 195, and they were there treated as sufficient.

The chief objection urged to the petition is that it is too indefinite. If the contentions of the district in that respect are sustained it would be necessary for the petitioner to employ a surveyor, have a survey made' of the main ditch for the 10,700 feet thereof from the south part of his land to the east line of Milk’s Grove township and of said lateral ditch for the 2,000 feet thereof through his land and cause profiles thereof to be made showing the width, depth and .fall of said main ditch and said lateral ditch within said limits, and to file with the petition a profile thereof, and also to cause a surveyor or civil engineer to make estimates and draw profiles showing how deep and how wide and at what grade of descent said ditches should be in order to give petitioner an outlet for the waters from his land and for the waters brought upon his land by said two lateral ditches. It would then be necessary for the petitioner to amend his petition and set up and allege all said facts and' details so as to furnish the district with full information as to the manner in which they can make the drainage ditches accomplish the duty intended. The act under which this district was organized was repealed by the act in force July 1', 1885, but the district was continued in existence under and subject to the provisions of said later act. Cleary v. Hoobler, supra. Section 41 of said act of 1885, as amended in 1901, enacted that after the completion of the work the commissioners of the district shall keep the same in repair, and if the lands of the district are not drained as contemplated or they receive partial or no benefit, the commissioners shall use the funds of the district to carry out the original purpose, to the end that all the lands so far as practicable shall receive the benefits contemplated when the lands were classified, and if sufficient funds are not on hand the commissioners shall make a new tax levy. There is nothing in this to imply that the dissatisfied landowner must do the surveying and civil engineering necessary to determine just where the difficulty lies and just how much and what kind of repairs would be sufficient to give the proper outlet. An imperative duty seems by this statute to be imposed upon the drainage district, when it is ascertained that certain lands within the district are not drained when they have been classified as to be benefited by the ditches of the district, to take the initiative and give the landowner the required relief. This duty was expressed in the opinions in Peotone Drainage District v. Adams, 61 Ill. App. 435, and 163 Ill. 428. It seems most in harmony with the spirit of said amended section 41 of the Farm Drainage Act to hold that all the landowner needs to show is that his lands have been classified as to be benefited and have been assessed and that he has paid the assessment, and that his lands have not been drained, and to show reasonable ground for believing that the ditches and drains of the district can be so repaired as to give him the drainage contemplated by the organization of the district and the classification of his lands. Here the petition shows that in a distance of 10,700 feet from the south part of petitioner’s land there is a fall of eight feet, and that a fall of three feet in that distance in a ditch properly widened and graded at the bottom would drain petitioner’s land. It would seem burdensome to cast upon the landowner the civil engineering duties here called for. The district would not be bound to repair the ditches in the precise manner so suggested by the petitioner, unless indeed the judgment in mandamus so commanded, and the expense thus incurred by the landowner would very likely be lost. It seems to be the policy of the law to leave in the authorities of such a district a considerable discretion as to the precise manner of carrying out the details of such an improvement which may vary as conditions develop in actually doing the work. The judgment usually only commands the district to produce the result of relieving the land. In Peotone Drainage District v. Adams, supra, there was indeed in the amended petition some attempt to indicate what might be done by way of changing the underground tile drain there in question so as to relieve petitioner’s land, but as that tile drain was underground and out of sight, it is obvious that the allegations of that petition on that subject must have been largely matter of opinion. The amended prayer of the amended petition in that case only asked that the drainage commissioners be commanded “to alter, repair and modify said drainage system so as to provide an outlet of ample capacity to the end that your petitioner’s said land shall receive the protection and benefit contemplated when said drainage district was organized and the said lands were classified, and that they make a special assessment to meet the cost thereof.” The judgment of the court was in substantially the same words. It commanded the commissioners so to repair and modify the drainage system as to give the landowner adequate drainage, but how the previous work should be changed to accomplish that result was left to the commissioners. If therefore such a prayer and such a judgment are proper and sufficient, it would seem unnecessary for the landowner in his petition to set out details which were not to be incorporated in the judgment. In Kreiling v. Nortrup, supra, the petition, the prayer and the judgment seem to have been substantially like those in the case before us, and the judgment was affirmed. True, that petition was not tested by a demurrer, but the two cases just cited seem to indicate the proper pleading and practice in such case. If so, this petition is not subject to the charge of being too indefinite.

One sentence in said petition states that if said main ditch and two lateral ditches be deepened and widened within the limits already stated, a complete outlet would be furnished for the drainage of petitioner’s land and for carrying off the water brought thereon by said two lateral ditches, “as your petitioner is informed and believes.” That sentence does not aid the petition, for the allegations of a common law pleading must be positive' and are not permitted to be made upon information and belief. It is argued that the entire petition is bad because of the words just quoted. An examination of other parts of the petition show that the same charge is elsewhere' substantially alleged without that qualification. The allegations that the fall from the south part of the petitioner’s land to the east line of Milk’s Grove Township, a distance of about 10,700 feet, is about eight feet, and that said main ditch can he deepened sufficiently to give petitioner a complete outlet and carry off the water from petitioner’s land and from the two lateral ditches without interfering with the flow in the main ditch, and numerous like allegations, are positively alleged and as positively admitted by the demurrer. The presence therefore of a single allegation in a single sentence based only upon information and belief is not sufficient to render the pleading obnoxious to the demurrer.

The judgment includes an order for an execution against the drainage district. The district is a quasi-municipal corporation, and the commissioners are sued only in their official capacity, and it was error to award execution. That part of the judgment must be reversed, but as no point was made upon it by appellant, such partial reversal should not carry costs in this court. The order for execution is reversed and in all other respects the judgment is affirmed at the costs of the district, without execution.

Affirmed in fart and reversed in fart.

Mr. Presiding Justice Thompson,

dissenting.

The only question before this court is the sufficiency of the petition. The demurrer is special and general. The petition nowhere gives the dimensions or particular description of the main ditch or the two lateral ditches which the petitioner desires to have enlarged and deepened nor does it state how much any of the ditches are to be deepened or widened. Neither does the petition state in positive terms that the changes desired will be of any benefit. The statement of the petition is that if the ditches be deepened and widened between certain points “a complete outlet will be furnished as your petitioner is informed and believes to the drainage of your petitioner’s land and for carrying off the water brought on by the two lateral ditches.” Counsel for petitioner rely on the cases of Peotone & Manteno Union Drainage District v. Adams, 61 Ill. App. 435, affirmed in 163 Ill. 428, and Kreiling v. Nortrup, 116 Ill. App. 448, affirmed in 215 Ill. 195, as authority for the sufficiency of their petition. The language and statement of facts of the petition in this case and in the case of 61 Ill. App. are somewhat similar but in the case at bar the petition lacks the certainty and completeness of the statement in the case relied on. It should be observed however that in the two cases relied upon issues were joined and trials had on the issues. The sufficiency of the petitions was not raised in either case by demurrer. In the Peotone case the petition had attached a “plat of the district together with a profile of the contemplated improvements which showed the drainage that was claimed to be insufficient,” and the court said that “A map or profile, marked exhibit ‘O’ with his petition indicates the character and change necessary to give the petitioner the outlet which in his judgment was proper and right; and that it would cost $150 to make the change.” In that case it was clearly shown what change the petitioner sought to compel the district to make. In the present case no facts are alleged as to the desired change except that the change required is the deepening and widening of ditches that will “cost approximately $8,000” and is to extend over two miles in length along the main ditch in which there is a fall of eight feet and along the lateral ditches across petitioner’s land. There is no statement that, if the $8,000 should be assessed, raised and expended, it would be of any service. All the petitioner states is that “a complete outlet will be furnished as petitioner is informed and believes.”

‘ ‘ The writ of mandamus will not be awarded in any case unless the relator shows a clear legal right to have the thing done, and in the manner asked.” “It will never be ordered in a doubtful case.” '“Every material fact necessary to show the plain duty of the respondent to act in the premises must be set forth by a party seeking to compel the performance of an act. ” “ The burden is always on the relator to clearly establish the right sought to be enforced.” Swigert v. Co. of Hamilton, 130 Ill. 538; Cristman v. Peck, 90 Ill. 150; Gormley v. Day, 114 Ill. 185; People v. Mayor, 51 Ill. 27; People v. Town of Mount Morris, 145 Ill. 430; Cunning v. Sheahan, 73 Ill. App. 118. It is the duty and obligation of the commissioners to provide ample drainage for assessed land in the district. Binder v. Langhorst, 234 Ill. 583. On the facts stated in the petition, if the enlargement of the ditches desired will furnish the relief appellee desires he is entitled to the writ of mandamus. Bromwell v. Flowers, 217 Ill. 174. It is however necessary that the petition should state in such form as to be issuable that the work the district was sought to be made to perform, prima facie, would accomplish the desired object. The petition should allege the facts which petitioner would be required to prove to sustain it. I am of the opinion that the petition was insufficient in not showing with reasonable certainty the specific improvements or changes that were desired, and that such changes would accomplish what petitioner was entitled to. The appellant should not be required to raise and expend $8,000 as an experiment without a positive statement from some person that it will be beneficial. I think the demurrer should have been sustained with leave to the petitioner to amend if he desired.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    Corning & Company, Appellant, v. Peoria & Pekin Union Railway Company, Appellee.
    Gen. No. 4,996.
    1. Instructions—when giving of peremptory saved for review. The question whether the court erred in instructing the jury to find the issues for the defendant is saved by an exception to the giving of such instruction in the bill of exceptions without the interposition of a motion for a new trial.
    2. Common carriers—obligation of, safely to transport. When goods have been delivered to a carrier to be carried and delivered to a certain person at a certain destination, the carrier is an insurer for the safe delivery of the goods to the person to whom they are consigned.
    3. Common carriers—when liability does not attach. The liability of a common carrier attaches by virtue either of full delivery of the merchandise to be transported or by acceptance of such merchandise by the carrier.
    4. Common carriers—when delivery of merchandise not shown.

      Held, under the facts of this case, that there was neither delivery of merchandise to the carrier nor acceptance thereof by the carrier and that the common law liability of the carrier did not attach.
    Assumpsit. Appeal from the Circuit Court of Peoria county; the Hon. Nicholas E. Wobthington, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed October 14, 1908.
    Statement toy the Court. On June 4, 1904, the Peoria & Pekin Union Railway Company placed Illinois Central box car No. 16223 on a spur track next to a platform on the outside of a warehouse operated by the Corning Distilling Company of the city of Peoria. The Corning Distilling Company loaded the car that afternoon with sixty-six barrels of alcohol, whiskey and cologne spirits, the property of Corning & Company, a corporation engaged in rectifying spirits, whose place of business was some 1200 feet away. The loading was finished about 2:30 p. m. and the car was sealed by the Distilling Company. At about four o’clock that afternoon and before the car had been removed, an explosion took place in another warehouse of the Distilling Company, next to that from which this car had been loaded, and a wall of said last mentioned warehouse fell across said spur track so that an engine could not go in to haul out said car. A fire immediately broke out in the warehouse, and this car and its contents were consumed.
    This is an action by Corning & Company for the use of the Liverpool & London & Globe Insurance Company of London, England, and for the use of the Norwich Union Fire Insurance Company, of Norwich, England, against the Peoria & Pekin Union Railway Company, to recover the value of the contents of said car. A declaration was filed containing two special and two common counts. Plaintiff afterwards dismissed the two common counts. The first special count averred that plaintiff delivered said goods to defendant, a common carrier, and the defendant received the same to be taken care of and safely carried from said spur track to plaintiff’s warehouse adjacent to one of the defendant’s tracks in the city of Peoria to be there safely delivered by defendant to plaintiff; that in consideration of a certain reward to defendant it promised plaintiff to take care of said goods and safely carry them to said place and there deliver them to plaintiff; and that, though defendant as such carrier received said goods for said purpose, yet it did not take care of or safely carry them or deliver them to plaintiff, but behaved so carelessly in that respect that by defendant’s mere negligence and improper conduct said goods were wholly lost to plaintiff. The second count was shorter but similar in its charges, save that it alleges a promise by defendant to deliver the goods to plaintiff within a reasonable time and that a reasonable time had elapsed but defendant did not safely carry said goods to the warehouse of Corning & Company, nor there deliver the same to plaintiff, whereby the goods were lost to plaintiff. Defendant pleaded the general issue. At the close of all the proofs, the court, on motion of defendant, directed the jury to find the issues for defendant. Such a verdict was returned and' defendant had judgment thereon. This is an appeal from said judgment.
    P. H. Tichenor and Barger & Hicks, for appellant.
    Stevens & Horton, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Plaintiff did not move for a new trial. Those questions which require to be first presented to the court below by motion for a new trial before they can be availed of on appeal are not preserved for review by this record. The question whether the court erred in instructing the jury to find the issues for the defendant is saved by an exception to the giving of such instruction in the hill of exceptions, without the interposition of a motion for a new trial. I. C. R. R. Co. v. O’Keefe, 154 Ill. 508.

When goods have been delivered to a carrier to be carried and delivered to a certain person at a certain destination, the carrier is an insurer for the safe delivery of the goods to the person to whom they are consigned. Pacific Express Co. v. Shearer, 160 Ill. 215. The liability of the carrier is fixed by accepting the property to be transported. If the goods are placed in his car without his knowledge or acceptance or that of his agent, he is not liable as a common carrier. If the owner or person having the custody of the goods to be shipped never parts with their possession or does not place them under the control of the carrier there is no bailment, and no liability as common carrier is incurred. I. C. R. R. Co. v. Smyser & Co., 38 Ill. 355; Pratt v. Grand Trunk Ry. Co., 95 U. S. 43. Where a car had been furnished, by a common carrier and loaded with hay, but the shipper requested that it be not forwarded until he had seen the consignee, and w;hile so delayed the hay was destroyed by fire, it was held that the railway company was not liable as a common carrier, because the liability of a common carrier does not attach until the delivery to him of the property is complete. St. L., A. & T. H. R. R. Co. v. Montgomery, 39 Ill. 338. The material question here is whether the goods in question had been delivered to defendant and accepted by it for transportation before the fire.

There is very little controversy about the material facts. The car in question had been ordered the night before, and had been set in by defendant on said spur track on the day of the fire and before 12:30 p. m. But the car had not been ordered of defendant. The car had been ordered by the Distilling Company from the Illinois Central Bailroad Company, and then the Distilling Company had requested defendant to get said car from the Illinois Central and place it on said spur track. The defendant furnished to its shippers blanks known as “form 200” for nse by them whenever they had cars to be shipped out. Said blanks were in three parts, the first, to be filled out and signed by the shipper, giving directions where the car should be delivered and what its contents were; the second part containing an order to the switching crew to be signed by the agent of the company; and the third part a receipt for the car, to be signed by the consignee. On or before 12:30 p. m. of that day, a clerk of the Distilling Company filled out the first part of one of these blanks and signed it in the name of the Distilling Company, thereby directing defendant to deliver Illinois Central car No. 16223, contents whiskey, from Corning Distilling Company to Corning & Company, and charge switching to Corning & Company. This clerk departed from the warehouse at about 12:30 leaving this switching order for delivery to defendant’s messenger boy whenever he should come. At that time the Distilling Company had not commenced to load the car. That work began after one o’clock p. m. Between two o’clock and two thirty p. m. Moran, defendant’s messenger boy, came to the warehouse of the Distilling Company and asked if they had any switching orders, and a clerk delivered this order to him, and he detached the order and tacked the rest of the form upon the side of the car furthest from the platform. No one testifies that the loading of the car was then completed. The clerk who delivered the order to him testified that he did not know whether the car was then loaded or not, and that that had nothing to do with the delivery of the order. When all of Moran’s testimony is read from the record it will be found that he testified that the loading of the car was not yet finished; that the men were at work upon the platform; and that when he tacked the card on the other side of the car the door on that side was closed, but he heard the men at work in the car. The officers and agents of plaintiff, as well as the offleers and agents of defendant, testified that this order would have been delivered to Moran at any time after it was made out if he had called, and that the delivery of the order to Moran did not mean that the car was loaded and ready to be taken away. It was the custom of defendant to do the afternoon switching in that vicinity between four and six o’clock p. m. This was partly for the convenience of defendant and partly for the convenience of the Distilling Company and other shippers, as their cars were usually not loaded and ready to go out earlier than those hours. The loading of this car was finished about two thirty p. m. and the Distilling Company then sealed the car. The explosion and fire was about four o’clock, p. m. The switching order had to go to what was called the junction office of defendant, where, if the order for shipment was accepted, it was put on the list for the shipping crew that afternoon. In this particular case another thing remained to be done before defendant would determine to move the car as requested by the shipping order. Where it received a car from another railroad to be placed at a warehouse for loading, if it received an order to ship such loaded car back to the same railroad, it would obey that order without any further directions. But if it had orders to ship that car to some other railroad or place than the railroad from which the car came, then the junction office, upon receiving the switching order, would apply to the railroad company which had furnished the car to ascertain if it consented that its ear should be sent to this different destination. In this case, in the regular course of business, when the switching order reached the junction office, the chief clerk there or his assistant would call up the Illinois Central office by telephone and ask if it consented that this car of liquor be delivered to Corning & Company at its warehouse and, if the Illinois Central made a negative answer, then defendant would not accept nor execute the switching order. If the Illinois Central consented, then defendant would accept the order and enter it on its books and place it on the list of work to be done by the switching crew that afternoon. The propriety of such a custom and usage is obvious. Otherwise the Distilling Company might have used this car for a different purpose from that for which it was obtained from the Illinois Central, without the knowledge or consent of the Illinois Central, and without paying for its use. When Moran received this switching order he did not immediately return to the junction office, but called upon other shippers to see if they had orders to take out cars that afternoon. He had not reached the junction office with this order when the explosion and fire occurred. The junction office had therefore no notice that the Distilling Company wished them to ship out that ear that afternoon, and had no notice that the car was not to be returned to the Illinois Central, and defendant had not applied to the Illinois Central to know whether it consented to such a movement of its car, and that consent had not been obtained, and the things had not yet been done which were essential before defendant could accept the order to move the car.

It is contended that this evidence relative to the custom of obtaining the consent of the Illinois Central before turning the car over to some other destination was incompetent, because it was not shown that the shipper knew of the custom. Plaintiff had alleged that it had caused these goods to be delivered to defendant and that defendant had accepted them for transportation. The issue was whether the goods had been delivered to and accepted by the defendant for transportation, and plaintiff had to prove that. If some fact existed, because of which defendant was not at liberty to take the car away until another order had been obtained from the Illinois Central, then defendant had not yet received the goods for transportation, and the knowledge of that fact by the shipper was not essential.

Under all the facts above stated we conclude that the liability of defendant as a common carrier had not attached. The making out of the switching order was before the goods were loaded. The delivery of the switching order to the messenger boy was before the loading was completed, and the car could not have been removed at that instant. The messenger had no authority to accept goods for shipment. After the loading was completed the shipper gave no notice to defendant that the car was ready. It was the intention of both parties that the shipping order only meant that the car would be loaded during the afternoon and would be ready to be taken out between four and six o’clock p. m. It may be that, if this had been a car owned by defendant, or which it had procured and placed on that spur track for loading, defendant’s liability as a common carrier would have attached when the loading was completed and the car sealed, without any other notice to defendant that the car was ready. But certainly that cannot be true where defendant did not procure the car, but the shipper did, and where the usage of the business would not permit defendant to take the car to any other destination than that from which it had received it without another order from the railroad company which owned the car, which order it had not received. Until this switching order had reached the junction office and it had obtained the consent of the Illinois Central that this carload might be taken to plaintiff’s warehouse, defendant had not accepted the goods for shipment. If the Illinois Central had refused its consent, defendant would have refused to accept the shipping order and would not have been liable as common carrier.

Defendant also supports the judgment on other grounds, but we are of opinion that the court did not err in giving the direction to the jury, for the reasons above stated, and it is therefore unnecessary to discuss other reasons urged in support of the judgment. We hold that the evidence recited was competent. If any other evidence offered by defendant was improperly admitted, plaintiff was not harmed thereby, as the jury did not decide the questions of fact. For the reasons stated the judgment is affirmed.

Affirmed.


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    Union Brewing Company et al., Appellees, v. Interstate Bank & Trust Company, Appellant.
    Gen. No. 5,005.
    1. Negotiable instruments—when part of signature surplusage. A note signed in the name of a corporation by an individual as president will be deemed as only signed by such individual where the payee of such note knows that no such corporation exists and that the corporate name is only one assumed by the person signing as president for purposes of business convenience.
    2. Pledges—when collateral notes secure other indebtedness. A collateral note signed by an individual under a fictitious corporate name is an individual obligation and, if it provides that it shall secure other indebtedness of the maker, it covers any other indebtedness due to the payee from the maker, and this notwithstanding such collateral note refers to the other liability by the word “ours.”
    3. Pledges—when admission of partner by pledgor does not affect rights of pledgee. The renewal of an old note is not a payment thereof and such a transaction effected after the admission of a partner by the pledgor does not affect the rights of the pledgee.
    Heard in this court at the April term, 1908.
    Reversed and remanded with directions.
    Bill of interpleader. Appeal from the Circuit Court of Peoria county; the Hon. Nicholas E. Worthington, Judge, presiding.
    Opinion filed October 14, 1908.
    Statement by the Court. On December 10, 1906, the Union Brewing Company and the firm of S. & A. Woolner filed their bill of interpleader against the Interstate Bank & Trust Company (hereinafter called the Trust Company), John Gr. Allen, as trustee in bankruptcy of E. Lewis Kelley individually and as surviving partner of George H. Simmons, late partners under the name of People’s Savings Bank, and Arthur Tapping as administrator of the estate of said George H. Simmons, deceased. The bill set up that the Union Brewing Company on or about December 29, 1905, delivered its note, dated December 9, 1905, payable to People’s Savings Bank one year after date, for $9,472.32 with interest at six per cent, per annum from date until paid, which note was guaranteed by S. & A. Woolner; that said note is now due and complainants are ready to pay it, and it will greatly injure their financial credit if it is protested. The bill then set up that the Trust Company claims to hold and own said note as collateral security for various notes described, given by People’s Savings Bank and George H. Simmons, who was engaged in business under said name of People’s Savings Bank; that E. Lewis Kelley and George H. Simmons afterwards became partners as .People’s Savings Bank; that Simmons died February 6, 1906, and Arthur Tapping became administrator of his estate and claims that part of the proceeds of said note is due to him; that on February 9, 1906, bankruptcy proceedings were begun against Kelley and on February 25, 1906, he was adjudged a bankrupt, personally and as surviving partner of Simmons, and John G. Allen was appointed trustee in bankruptcy of said estate, and that said trustee claims' to be the owner of said note. The bill asked that complainants be permitted to pay into court the money due on said note, and that the defendants interplead and settle their demands thereto, and that the defendants be restrained from suing or protesting the note. An injunction was issued upon complainants paying the money into court, and the several defendants filed answers setting up their respective claims. The Trust Company asserted that it held said note of the Union Brewing Company and S. & A. Woolner as collateral security for a note of $5,000 due it from George H. Simmons under the name of People’s Savings Bank, and also for several other notes for $4,000, $1,000, $500 and $2,500, signed by George H. Simmons by his own proper name. The cause went to a master, who took and reported the proofs with his conclusions that the Trust Company was entitled to be paid out of said fund one certain note of $5,000, with interest, and that the rest of the fund was owing to the trustee in bankruptcy. The Trust Company filed objections because it was not held entitled to be also paid its other notes signed by George H. Simmons by his own proper name. These objections were overruled. They were renewed as exceptions,before the court, and were overruled, and a decree was entered pursuant to the master’s report. This is an appeal by the Trust Company from that decree.
    Confusion was caused by the introduction in evidence of numerous other notes, which it is not now claimed are involved in this case, many of them of the same dates and amounts and between the same parties as the notes which are here in issue. We shall endeavor to refer only to those which we understand to be the subject of this suit. The transactions begin before the particular instruments described in the bill of complaint.
    During the year 1905 George H. Simmons was president, and W. M. Wood was vice-president, and Peter Anicker was cashier of the Trust Company, which was engaged in a banking business. Prior to August 26, 1905, Jacob Woolner was the owner of a banking business in Peoria, which was conducted under the name of the People’s Savings Bank. On that day he sold said business to George H. Simmons, and the latter took possession of the property and business on September 9, 1905. On September 15, 1905, Simmons borrowed $5,000 from the Trust Company, and gave therefor a note of that date for that sum due ninety days after date, with interest at seven per cent, per annum, the rest of which note read as follows :

      “Having deposited with said bank as collateral security, for payment of this or any other liability or liabilities of ours to said bank, due or to become due, or that may be hereafter contracted, the following property, viz: Note, the Union Brewing Co., endorsed by S. & A. Woolner, and dated September 9th, 1905, for $9,472.32, payable 3 months after date,' with 6 per cent interest from date, to the People’s Savings Bank and endorsed by them, the market value of which is now $9,472.32; with the right to call for additional security should the same decline; and on failure to respond, this obligation shall be deemed to be due and payable on demand, with full power and authority to sell and assign and deliver the whole of said property, or any part thereof, or any substitutes therefor, or any additions thereto, at public or private sale, at the option of said bank, or its assigns, and with the right to be purchasers themselves at such public or private sale, on the non-performance of this promise or nonpayment of any of the liabilities above mentioned, or at any time or times thereafter, without advertisement or notice. And after deducting all legal or other costs and expenses for collection, sale and delivery, to apply the residue of the proceeds of such sale or sales so to be made to pay any, either or all of said liabilities, as said bank, or its president or cashier, shall deem proper, returning the overplus to the undersigned.
    People’s Savings Bank,
    Geo. H. Simmons, Pres.”
    At the same time Simmons delivered to the Trust Company the nóte pledged in the instrument just recited, being exhibit “3”, appearing on page 186 of this record, a note dated September 9, 1905, for $9,472.32, with interest at six per cent, and containing a provision that it might be renewed for three months at maturity, signed by the Union Brewing Company, payable to the order of the People’s Savings Bank, and endorsed by S. & A. Woolner and by “People’s Savings Bank, Geo. H. Simmons, Pres.” At that time Simmons was indebted to the Trust Company upon a note for $4,000 with interest at the rate of six per cent., dated July 26, 1905, due one year after date and endorsed by Geo. H. Simmons, V. A. Goebbels, D. S. Long, H. W. Danforth and Marcus Whiting. On December' 1, 1905, Simmons became indebted to the Trust Company upon three other notes of that date, each due six months after date; one being exhibit “A3” on page 178 of the record, for $1,000 with interest at five per cent., signed by G. H. Simmons and George B. Powell; another being exhibit “A7” on page 182 of the record, for $2,500 with interest at five per cent., signed by G. H. Simmons and A. H. Thompson; and the third being exhibit “A8” on page 183 of the record for $500 with interest at five per cent., signed by G. H. Simmons and P. L. Mounce. On December 14, 1906, Simmons renewed his note of September 15, 1905, for $5,000 by giving another instrument of the same date and tenor as the one above set out, except that its maturity was eighty days after date, and with the same pledge, describing the same note for $9,472.32. The signature was “People’s Savings Bank, Geo. H. Simmons, Pres.” as to the first $5,000 note and pledge agreement above recited. On December 19, 1905, Simmons entered into a partnership agreement with E. Lewis Kelley, “to own the' banking business and the building of the People’s Savings Bank”, and by that agreement Simmons agreed to transfer to Kelley a one-half interest in the building and the banking business of the' People’s Savings Bank. The note of the Union Brewing Company for $9,472.32, of date September 9, 1905, and due in three months, which had been so assigned to the Trust Company as collateral security and which had been specifically described in each of the written pledges above recited, was past due when this instrument of December 14, containing the second pledge, was executed, but it had -not then been renewed on account of the absence of one -of the Woolners from Peoria. On December 29 or 30, 1905, the renewal of that note dated Decernher 9, 1905, payable one year after date to the order of the People’s Savings Bank, for $9,472.32, with interest at six per cent., signed by the Union Brewing Company and guaranteed by S. & A. Woolner, being-exhibit “1” on page 184 of the record, was delivered to the Trust Company in lieu of and in substitution for the original note, exhibit “3”, and the original note for $9,472.32 of date September 9, 1905, being exhibit “3”, was surrendered to the Union Brewing Company. Said note Exhibit 1 remained in the possession of the Trust Company at the time of the hearing and decree in this case.
    It is the claim of the Trust Company .that by the language of the first $5,000 note of September 15, 1905, pledging said Union Brewing Company note as collateral, said last named note was held as security not merely for said $5,000 note but also for said $4,000 note due to said Trust Company, of date July 26, 1905, and that by virtue of the new contract and pledge embodied in the renewal note of $5,000 of December 14, 1905, said collateral note was held as security not only for said $5,000 note but also for said respective notes of Simmons of date July 26, 1905, for $4,000, and for said three notes of December 21, 1905, for $1,000, $2,500 and $500, respectively; and that when on December 29 or 30, 1905, the new Union Brewing Company’s note for $9,472.32, dated December 9, 1905, and due in one year, was substituted in lieu of the original pledge, it held said last named note as collateral security for all said notes of Geo. H. Simmons, and that too, although this last note pledged did not bear the endorsement of the People’s Savings Bank or Geo. H. Simmons. The trustee in bankruptcy claims, and the master and the court held, that said pledges only secured notes held by the Trust Company signed by the name “People’s Savings Bank,” and did not secure the other four notes above recited, signed by Geo. H. Simmons by his own proper name, and that the surplus of the money in court, after satisfying said one note of $5,000 (upon which there was a small credit), was payable to the trustee in bankruptcy, who was trustee not only for Kelley individually, but also for Kelley as surviving partner of Simmons in the business conducted after December 19, 3905, by them as partners under the name of People’s Savings Bank. Simmons died February 6, 1906, and his administrator claims that an interest in said last note of the Union Brewing Company, executed December 29 or 30, 1905, as of December 9, 1905, belongs to him as administrator, but his claim was ignored by the court and he has not assigned error.
    Jack, Irwin, Jack & Miles, for appellant.
    Maple & Lovett, for appellees; John S. Stevens, of counsel.
   Mr. Justice Dibell

delivered the opinion of the court.

From September 9 to December 19, 1905, covering the time when the first $5,000 note and the $5,000 note in renewal thereof were executed in the name of “People’s Savings Bank, Geo. H. Simmons, Pres.” and delivered to the Trust Company, wifh the pledge agreement contained in each, George H. Simmons and he alone was doing business under the name of “People’s Savings Bank.” If any persons who dealt at that place of business believed it to be a corporation and were deceived thereby to their injury (as to which our attention is not called to any evidence in this record), it may well be that as between Simmons and such persons he would be estopped to deny the corporate character of the business. No such case is presented here. The vice-president and the cashier of the Trust Company were fully informed by Simmons before the Trust Company made this loan of $5,000 to him, and. again before the note was renewed, that he, and he alone, was doing business under that name. As between Simmons and the Trust Company the case stands exactly as if the instruments had been signed simply “Geo. H. Simmons.” There was no corporation named “People’s Savings Bank.” Simmons was not president of any such corporation. These facts were well known to the vice-president and to the cashier of the Trust Company when they made this loan and when they renewed it. Those words in the signature were fictitious, or were assumed for business purposes, and were well known by said officers of the Trust Company not to represent any fact. The-words “Geo. H. Simmons” in the signature were all that was actual and the officers of the trust company knew that fact when they accepted the paper.

The agreement to hold said note for $9,472.32 as collateral security provides that it is held, not only for the payment of that note, but also as security for the payment of “any other liability or liabilities of ours to said bank due or to become due or that may be hereafter contracted.” It also provides that when the collateral has been reduced to cash the Trust Company shall “pay any, either or all of said liabilities,” out of the proceeds of said collateral. We fail to see how language could be employed to bind said collateral note more fully for all other liabilities which Simmons then owed the Trust Company or which he might thereafter contract with it. The word “ours” in the phrase “liability or liabilities of ours” is plural, it is true, but even if the People’s Savings Bank had been a corporation, the singular number would have been the proper one to use unless the other liabilities were also intended to be secured. These words in the form are printed, and obviously the printed blank was so framed with the intention that it should be equally binding whether signed by one person or by more than one. We are of opinion that Simmons was the only signer of these notes and agreements pledging collateral, and that they secured all the notes which the Trust Company held against Simmons at .the time they were executed. Such an agreement to secure not only a particular debt but also any and all undescribed indebtedness was supported in Buchanan v. International Bank, 78 Ill. 500; Walker v. Abt, 83 Ill. 226; and Bartelott v. International Bank, 119 Ill. 259.

The second pledge agreement had been executed and delivered by Simmons to the Trust Company before Kelley became his partner under the name People’s Savings Bank. The indebtedness from the Union Brewing Company to Simmons under the name People’s Savings Bank had therefore been pledged to the Trust Company for all of Simmons’ debts to it before Kelley had acquired any interest in the assets of the business conducted under the name People’s Savings Bank. The subsequent partnership gave him no interest in the debt so pledged, as against the claims for whose payment it was pledged. The fact that the note of the Union Brewing Company so pledged and deposited as collateral was afterwards renewed, and the time of payment extended, and the new Union Brewing Company note substituted for the one previously held in pledge, and that this substitution, though dated before the partnership, was not actually effected till after the partnership, does not alter the rights of the Trust Company. The debt which the Union Brewing Company owed had been pledged before Kelley went into the business, and the mere giving of a new note in substitution for the old did not pay the old debt nor create a new debt in which Kelley had an interest, as against the claims for which it had been pledged. Each pledge agreement expressly provided for substitutes for said original pledged note.

We are therefore of opinion that the Trust Company was entitled to a decree for the payment of all of its notes against Simmons out of the fund in court. Those debts exceed the amount of the fund pledged, and there would be no surplus for the trustee in bankruptcy. The decree is therefore reversed and the cause remanded to the court below with directions to enter a decree in conformity with this opinion.

Reversed and remanded with directions.


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    Frank Reidel, Appellee, v. Chicago, Rock Island & Pacific Railway Company, Appellant.
    Gen. No. 5,009.
    1. Negligence—how question to he determined. If the testimony is conflicting the question of negligence is one of fact to be determined hy the jury.
    2. Contbibtjtoby negligence—when person struck hy cars making flying switch not guilty of. A laborer at work in private yards containing railroad tracks, is not under the same obligations with respect to keeping a lookout as is one employed in railroad yards where engines and cars are frequently moving about. In the former case the question of the exercise of ordinary care is one of fact for the jury.
    3. Evidence—who competent to testify to matter of speed. Sufficient experience qualifies a witness to testify to the rate of speed at which a string of cars was moving; expert evidence is not essential.
    4. Evidence—when testimony as to failure to ring hell competent, notioithstanding no such allegation is contained in the declaration. Notwithstanding the declaration does not charge failure to ring a hell, it is competent to show the failure of the railroad company to ring a hell or blow a whistle as bearing upon the question of the exercise of due care hy the plaintiff.
    Action in case for personal injuries. Appeal from the Circuit Court of LaSalle county; the Hon. R. M. Skinneb, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed October 14, 1908.
    Statement by the Court. On October 27, 1905, Frank Reidel, the appellee, was at work assisting in moving some empty box cars in the yards of the Q-er-man-American Portland Cement Works, near LaSalle, and walking between two switch tracks, when he was struck by a corner of a loaded coal car at the head of a string of cars which were making a flying switch into said yards without an engine attached. He was knocked across another switch track and against a warehouse, and became unconscious and received severe injuries. Said flying switch was made by a switching crew in the employ of the Chicago, Rock Island and Pacific Railway Company, appellant; and under a contract between the cement company and appellant said switch tracks were in the exclusive direction and control of the appellant while the same were in use in placing cars thereon or taking cars therefrom. Appellee sued appellant for injuries so received, and filed a declaration, the sufficiency of which to meet the proofs and support the verdict is not questioned. Appellant filed the general issue. The Cement Company was also originally a defendant. Afterwards the suit was dismissed as to the Cement Company. Appellant introduced proof at the trial tending to show a settlement with the Cement Company, but no point is made here upon that matter. There was a jury trial and a verdict and a judgment for plaintiff for $3,500. It is not contended that the verdict is excessive if appellant is liable. Appellant contends that the proof did not warrant a verdict that it had been guilty of negligence, causing said injury, but its main defense is that appellee was guilty of contributory negligence.
    The cement works are about one mile east of the railroad depot in La Salle, and north of the main line of appellant. Appellant’s ‘railroad at that point runs nearly due east and west. It is a double track road, the south track being used by the east-bound trains and the north track by the west-bound trains. A little distance east of the cement works a switch track leaves the west-bound track and goes first in a westerly direction, curving to the northwest and north, sharply down grade. This switch track is a single track for about 371 feet, and from that point two switch tracks proceed substantially north, and pass between the warehouse of the cement works on the west side of said tracks and its furnace room and engine room on the east side thereof. The west of these two switch tracks runs next to the warehouse and ends in a stub far enough north of the warehouse to hold six or seven cars. It is called the house track. The east track, next.to the furnace room and engine room, is called the coal track, and runs north some distance past the furnace room and engine room, and then curves to the northeast, past a building called a crusher. Between the warehouse on the west side and the furnace room on the east the railroad tracks are on level ground, and as the coal track curves off to the crusher the grade rises. Appellee was struck and injured between these two tracks and a little north of the most southern of the eastern doors of the warehouse. The warehouse comes further south than the furnace room, so that there was no building directly east of where appellee was struck. The cement works are situated in a deep valley or ravine. The top of the bluff directly west of the factory premises was forty-five or fifty feet above the level of the ground at the cement works. The warehouse was 178 feet long north and south and seventy-three feet wide, and between fifty and sixty feet high. The furnace room was 142 feet long from north to south and fifty-two feet wide east and west, and between twenty-five and thirty feet high. The engine room was eighty-four feet long north and south, and fifty-three feet wide east and west. The cement was manufactured in other buildings still farther east than those above described, and was carried therefrom to the warehouse in an open conveyor above the switch tracks, which open conveyor had a roof above it. This conveyor, however, seems to have crossed over the tracks farther north than the place where appellee was injured. When the cement reached the warehouse it was placed in bags which were then loaded into box cars placed opposite the various east doors of the warehouse on the house track. There were ten doors on the east side of the warehouse, the south door being number one and the north door number ten. The two switch tracks were seven feet apart, and each box car and coal car extends two feet or more beyond the rail, so that the space between a box car on the house track and a coal car on the coal track within which a person could safely walk was less than three feet.
    The Cement Company received its coal to operate its machinery and shipped its product over appellant’s road. Each afternoon a switching gang left La Salle and went east on the south track as far as the works, pushing ahead of the engine loaded cars of slack next to the engine, loaded cars of other coal next, and empty box cars farthest east. When this switch engine with cars reached the cement works it passed over to the north or west-bound track and shoved all these cars east of the switch that led into the cement works, and sent a flagman east to protect the track. The engine then left that string of cars and went down into the works, and upon the house track, and pulled out all the loaded cars thereon and any empties that might be- on the house track south of the loaded cars, then went back to the main track and set the loads out west of the switch on the main track, and then returned these empty box cars to the house track and sometimes placed the empties opposite various doors of the warehouse. The engine then crossed over to the coal track, hitched on to the empty coal cars at the furnace room and went back to the crusher, and hitched on to the empties there, and then went out upon the main track and set all those empty cars upon the main track west of the switch. The engine then hitched on to the train of cars which had been brought from La Salle and started them sharply west. Then a man on the head coal car uncoupled the engine and the engine ran ahead past the switch, and a man at the switch then threw the switch and this string of cars brought from La Salle passed in on the switch, down the grade, and up between the warehouse and the furnace room as far as the momentum applied to it would carry it. The engine then came down on the switch track arid hitched on to the other end of said string of cars, pushed the head end up as far as the crusher, left there all cars loaded with slack, and then came down opposite the furnace room and left there all cars loaded with other coal, then put over upon the house track the empty box cars, then returned to the main track and pushed back to La Salle the cars standing on the main track west of the switch. While this was the course ordinarily pursued, that order was sometimes departed from. When the switching, crew first came into the yards in the afternoon their foreman communicated with the foreman of the cement works, and if for any reason he directed that the work should be done in a different order, his directions were followed. Sometimes a carload of cement was being loaded, and the work was not quite completed, and the foreman of the cement works would direct that the coal track be pulled first, and such directions were obeyed. The entire work at the cement plant usually occupied the switching crew an hour or an hour and a half. It was usually begun between two and three o’clock in afternoon, but sometimes it was done later than that. The evidence for appellee tends to show that on this day the work by which he was injured was being done between five and half past five o’clock in the evening.
    William D. Fullerton, for appellant; Benjamin S. Cable, of counsel.
    Coleman & Coleman and Duncan, Doyle & O ’Conor, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

On the day in question the train came from La Salle later than usual. The loaded cars were pulled from the house track and set on the main track west of the switch; the empty coal cars were then pulled from the coal track and also set on the main line west of the switch. The engine then hitched on to the string of cars east of the switch and started the flying switch, which ran down an incline and into the yards of the Cement Company on the coal track. The proof favorable to appellee tends to show that the engine and cars had been gone from the yards forty minutes when this flying switch was made. It was between five o’clock and half past five p. m. of October 27th. The height of the bluff on the west side of these buildings, and the height of the warehouse and furnace room and conveyor above, all tended to make it much darker east of the warehouse on the house track than it was out in the open on the main line of the railroad. Appellee’s proof tends to show that it was a dark or foggy afternoon and that no wind was blowing, and that when there is no wind there is much cement dust in the air about the plant, and that this increases the darkness. Appellee was at work inside of the warehouse. Shortly before the injury several men were called from the warehouse to move empty box cars to positions exactly opposite the side doors. One or two witnesses on each side testfied that a car was moved from south to north opposite door number one. A very clear preponderance of the proof on each side shows, however, that the car was moved from the north to the south. Appellee had a bar and worked under the northeast wheel of the car, barring it south, while others pushed and appellee’s brother went ahead to block the car when exactly opposite door number one. When the car was set or spotted, appellee from his place over the east rail of the house track looked down the other track and saw nothing. He then turned around and walked on the cinder path between the two switch tracks to the north for the purpose of barring down the next empty car. He was a German and did not speak English. Some one gave an alarm, and a fellow workman who was situated as he was jumped out of the way. Just at this instant the string of cars came north, not attached to an engine. Loaded slack cars for the crusher were ahead. Trevillian, the foreman of the switching crew, stood in about the middle of the head car.' The brakes had been set to some extent at the south end of the first and at the north end of the second loaded cars to check the speed of the string of cars down the incline to the plant. Proof offered by appellee tended to show that the speed of the cars as they went by the warehouse was ten- or fifteen miles per hour. The proof favorable to appellant tended to show it was about five miles per hour. The corner of the head car struck appellee as he was thus walking north between the two tracks, and he was thrown and injured as already stated. In determining whether appellant was negligent in making this flying switch into that plant the jury were entitled to consider, among other things, the fact that it was later than the usual time for making the switch, and -that it was then dusk in between the buildings, if the jury found that appellee’s evidence to that effect was true. The evidence of Trevillian for defendant strongly tended to warrant the jury in finding that what was there done by appellant was negligent. He testified that as he approached these buildings he called out, because there was so much noise there (meaning from the machinery and cement works, the noise from which the proof showed was very great), that one could hardly hear when the cars were coming; that he saw that men were at work moving these box cars, and saw a man pinching or barring one of the cars, and saw that the man did not make any move. Trevillian testified that he called out because “he wanted to give them a show, because they were working at the car and probably would not know that the other cars were coming down the other track. I don’t think that they knew that they were coming.” The foreman of the switching crew therefore saw that these men were in a perilous position, in a comparatively dark place, and he knew that the noise of the machinery of the cement works was so great that they might not hear the string of cars coming, and he saw that they continued at their work, and thought they did not hear the string coming. His statement that he wanted to give them a chance shows that he thought they were in danger of being struck. Except his shouting, which he knew was not likely to be heard, no alarm was given. There was another man on the next car back, but no one set any more brakes or made any effort to stop the cars. Under all these circumstances we are of opinion that we cannot say that a verdict that appellant was negligent, and that this negligence caused the injury to appellee, ought to be set aside for want of proof to support it. Appellant had proof to meet some of these conditions. It was shown, for instance, that no head-light or other light was required on the train as they went back to LaSalle. But the light on the main track in the open did not rebut the proof of darkness existing in this ravine between these buildings and east of the warehouse. All of these matters, including the speed of the string of cars at the time appellee was struck, were questions of fact to be settled by the jury, where the evidence was conflicting.

The main question is whether appellee was exercising due care for his personal safety. He had worked in the warehouse over two years, and while his work was mostly inside the warehouse, yet he was sometimes outside. His work was packing cement in sacks and loading the cars, and incidentally assisting in moving box cars to the doors when the switching crew had not performed that service and also at times moving loaded cars away from the doors. The switching crew came in and did this work every day during all the time he had been there, and he must have had a general knowledge of the manner in which they performed their work. A running switch was made everyday in substantially the same way as this was made. On the other hand, no duty required him to know or to closely observe in what order or manner the switching crew moved the various cars. He had nothing to do with the coal cars on the coal track, and had no duty to observe when they were set in or whether they had been set in. When the loaded cars had been set in on the coal track they were left opposite the crusher and opposite the furnace room, and the furnace room was further north than the south end of the warehouse where he was injured, so that he might not notice that the loaded coal cars had not yet been set in. He would not necessarily know whether or not they had been set in. Appellee’s proof tended to show that forty minutes had passed since the switching crew had left the plant. Appellee testified that he did not know that the coal cars were yet to be set in. Some of his fellow employes in the warehouse did know that the loaded cars were yet to come in, but appellee did not talk English, and there is no proof that this knowledge had been communicated to him. The west bluff and the high warehouse and the dust in the air and the lateness in the afternoon all tended to produce a darkness at that place. He had looked south on the coal track and had seen nothing. He testified that he had never known cars to be set in so late. This is not like the case of railroad yards where engines and cars are frequently moving hack and forth all day long, and where an employe of the railroad company working in such yards must necessarily know that an engine or a car is likely to pass him at any moment, and is required to be on the lookout therefor. Under all these circumstances, we are of opinion that it was a question of fact for the jury whether appellee was exercising due care for his own safety when he turned from the car left at door number one, after having looked south on the coal track and having seen nothing approaching, and walked north on the path between the two switch tracks for the purpose of barring-down another car standing only a few feet further north. We regard it as a close question whether he was exereising such due care, and if the jury had found that he was not, we should not feel at liberty to interfere with that conclusion. But we also conclude that the evidence warranted a verdict either way upon that subject, and that we ought not to disturb the verdict of the jury, which means in effect that appellee was exercising due care.

It is argued that it was error to permit the witness Climek to testify to the speed of this string of cars as it came into the yards, because he had not shown special knowledge as to the speed of cars. It was held in C., B. & Q. R. R. Co. v. Gunderson, 174 Ill. 495, that persons familiar with trains are competent to testify to the speed thereof, and that it is not a matter for expert evidence; and the witness in question showed that he possessed sufficient experience in regard to trains to make him competent to give an opinion on that subject. The court permitted witnesses to testify that no bell or whistle was heard as this string of cars came into the plant. It is argued that this was error, as the declaration did not charge failure to ring the bell or sound the whistle. The evidence was not introduced for the purpose of charging appellant with a failure to perform a statutory duty, but for its bearing upon the question whether appellee was exercising due care. This proof showed that no whistle was sounded and no bell was rung which should have attracted his attention and caused him to ascertain that the cars were coming in. For that purpose we think the proof was properly admitted. If appellant feared that the jury would suppose that a cause of action arose from the failure to ring the bell or sound the whistle, it should have asked an instruction upon that subject, which would no doubt have been given, and any possible misapprehension in the minds of the jury would have been removed.

We conclude that the cause was tried without substantial error, and that the case involves only questions of fact, and that the conclusion of the jury thereon, approved by the trial judge, should not be disturbed. The judgment is therefore affirmed. ■

Affirmed.