text:
    Montague & Company, Appellee, v. C. L. Aygarn et al., Samuel Earp et al., Appellants.
    Gen. No. 5510.
    1. Pleading—effect of answering after demurrer overruled. By answering over after demurrer overruled, defendants waive their right to assign error on the ruling upon the demurrer.
    2. Assignments—how may be made. A contract pertaining to an interest in land not being a negotiable instrument, is assignable either upon the back thereof or by separate instrument.
    3. Assignments—effect of assignment of specialty by instrument not under seal. In equity an assignment not under seal, of a sealed instrument, will transfer an equitable title.
    4. Assignments—when of contract pertaining to land effective. As between the parties such assignments are effective when made; as against third parties they only become effective upon recording.
    5. Subrogation—when doctrine applied though not invoiced. The doctrine of subrogation will be applied in favor of a defendant who has not invoked the same where to fail so to do must result in granting to the complainant greater equities than he has shown himself entitled to.
    6. Tender—when waiver of will not affect defendant’s equitable rights. A complainant must do equity and he cannot urge a waiver of a tender to defeat a claim for lien where so to do would result in his failing to do equity.
    7. Interest—luhen not recoverable upon money loaned or advanced. While the statute provides that a creditor is entitled to interest on money lent or advanced, yet if there was a running account, then it is not entitled to interest until after there was an account stated.
    8. Appeals and errors—when assignments of error waived. Assignments of error not argued are waived.
    Bill in chancery. Appeal from the Circuit Court of Livingston county; the HoN. G-. W. Patton, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed October 13, 1911.
    Statement by the Court. Montague & Company, a Chicago corporation, on April 29, 1905, filed a hill in chancery in the circnit court of Livingston county, against C. L. Aygarn, D. C. Eylar and Samuel Earp praying that a claim for money which complainant had loaned to Aygarn he declared a first lien as against the defendants upon certain described elevator property in Pontiac, Livingston county, Illinois. A demurrer by the defendants to the bill was overruled after which defendants filed answers. The bill was afterwards amended by making the Livingston County National Bank a party defendant. The bank filed an answer and the cause was referred to the master in chancery to report the evidence. The court -upon a hearing entered a decree in favor of the complainant from which decree the Livingston County National Bank, Eylar and Earp appeal.
    The facts in the case are admitted by all the parties to the suit to be correctly found in the decree and are: On March 2, 1903, Samuel Earp, being the owner of certain described lots in Pontiac, in Livingston county, entered into a contract in writing under seal with C. L. Aygarn by which he leased said premises to Aygarn for two years at an annual rental of $77 per year and the taxes. The contract contains a clause that Aygarn shall have the option to purchase said premises at any time during the term of the lease by paying to Earp the sum of $.1,100 and all accrued rentals, taxes and assessments. The contract was executed in duplicate, each party retaining an original copy of the contract. Aygarn went into possession of the premises under the lease, erected an elevator thereon, and afterwards became insolvent. Within a few days after making the contract and during March 1903, Aygarn borrowed $4,000 from the Livingston County National Bank and assigned and delivered the contract with other collateral, to D. C. Eylar, the president of the bank, as collateral security for the loan. This assignment was not recorded. Subsequently, and about July 3, 1903, Aygarn, who was a buyer of grain at Pontiac and was shipping grain to Montague & Company, appellee, at Chicago, called upon appellee,at its office in Chicago and said to Montague & Company that he was building an elevator and had a contract for the land and wanted to borrow $1,200 to complete the payment of it, and that he would give appellee an assignment of the contract. Appellee asked Aygarn if he had the contract, and he said no, but he would give appellee an assignment of it, and showed appellee an assignment he had drawn up; he agreed to repay the loan by shipping grain to appellee and not making drafts therefor on appellefe. He did not tell appellee where the original contract was, and it does not appear to have asked him where it was.
    The 'instrument Aygarn executed is:
    “This agreement made this 2nd day of July, 1903, witnesseth, That Whereas, Samuel Earp, has the 2nd day of March, 1903, given C. L. Aygarn a contract of sale of lots (properly describing them) # * * upon which said contract there is due from C. L. Aygarn to Samuel Earp the sum of $1100 on or before March 2, 1905. with interest from March 2, 1903, and all taxes * * * and whereas said C. L. Aygarn desires occasional accommodations from Montague and Co. of Chicage, Ill., it is hereby agreed that Montague and Co. of Chicago, Ill., shall hold the interests of said C. L. Aygarn in said contract over and above the interest of said Samuel Earp as hereinbefore stated, to secure them for any advantage, loans or overdrafts upon which said Aygarn may be at this time or may in the future .become indebted to said Montague and Co. Witness our hand and seals this 3rd day of July, 1903. Christopher L. Aygarn. Witness, John H. Wheeler. ’ ’
    Upon the execution and delivery of this instrument, appellee advanced to Aygarn $1,200 and subsequently advanced further sums amounting to $645.75, making $1,845.75 due from Aygarn to appellee when the bill was filed.
    On February 12th, or 13th, 1904, Aygarn not having paid appellee, the secretary of appellee went to Pontiac and interviewed Aygarn and then went to Earp and offered to pay him $1,100 and demanded a deed. Earp refused to .make a deed unless appellee would produce the original contract properly endorsed. This appellee did not and could not do for the reason the hank held the original contract endorsed to it. Appellee thereupon filed for record, in the recorder’s office in Livingston county, the instrument Aygarn had given it and on February 20, 1904, notified Earp in writing that on July 2, 1903, Aygarn had assigned to appellee all his interest in the contract of sale of said premises dated March 2, 1903, and that appellee’s assignment was recorded in the recorder’s office in Livingston county in Volume 138 of Deeds on page 148, and that appellee was ready to pay the $1,100 due on the contract and demanded a deed of the premises to appellee under its assignment. On February 22, 1904, appellee again tendered the $1,100 to Earp and demanded a deed, and Earp again said he was not willing to make a deed unless the original contract was produced. Appellee again tendered the $1,100 before the master but kept the money and did not bring' it into court or tender it on the trial.
    On April 13, 1905, the Livingston County National Bank paid to Earp the sum of $1,148, the amount due on the contract of purchase, with the accrued rent, and received a deed of the premises to J. M. Lyon, its cashier. On April 18, 1905, Lyon who took the deed for the benefit of the bank sold and conveyed the property to Earp for $3,647.
    The trial court held that because the instrument executed July 3, by Aygarn to appellee was recorded and the assignment by Aygarn to Eylar as president of the bank on the back of the original contract was not recorded, that the claim of appellee for a lien against the premises was superior to that of any and all the appellants. It finds there is due to appellee from Aygarn the sum of $1,845.75 and that the same is a first lien on the premises described in the contract and that there is due Eylar, .trustee for the bank, the sum of $4,000, which is a second lien, and orders that Aygarn pay to appellee within thirty days the sum of $1,845.75 with legal interest from the date of the decree and the costs and that Aygarn pay Eylar, trustee for the bank, the sum of $4,000 with legal interest and in default of payment "by Aygarn or some of the defendants that the premises be sold by the master in chancery, and that out of the net proceeds after the payment of the costs that the master pay to appellee said sum of $1,845.75 with interest, if sufficient is realized to pay the same, and if sufficient be not realized to pay the whole of said sum with interest, then that he apply the same to the extent it may reach in satisfaction thereof, and if the premises sell for more than sufficient to pay appellee then that the master apply the remainder if any to the extent of its claim to the bank so far as it will go in satisfaction of the amount due the bank.
    A. C. Norton, F. A. Ortman and E. E. Wallace, for appellants.
    C. F. Carrithers and Welty, Sterling & Whitmore, for appellee.
   Mr. Presiding Justice GIeorge W. Thompson

delivered the opinion of the court.

Appellants insist that the court erred in overruling the demurrer to the bill. After the demurrer was overruled appellants filed answers. By answering over after the demurrer was overruled they have waived their right to assign error on the ruling upon the demurrer (Bauerle v. Long, 165 Ill. 340; Anderson v. Olsen, 188 Ill. 502), except in so far as they may have the same advantage on final hearing, of the failure of the bill to state a cause of action and as to jurisdictional defects.

The main contention of appellants is that the equities of the appellant hank are prior to the equities of appellee. The decree finds that the advances made hy appellee and the hank and the assignments taken by them respectively from Aygarn were in good faith on the part of the assignees. Aygarn had a written lease from Earp with an option in it to purchase the real estate described in it at any time within the lifetime of the lease upon the payment of $1100. Within a few days after the lease and option to purchase was delivered to him he assigned and hypothecated the lease and option to purchase, to the appellant bank, to secure a loan of $4000 made to him by the bank. Thereafter Aygarn made valuable improvements on the property by building an elevator thereon. He then secured a loan from appellee of $1200 and subsequently a further loan of $645.75 on the faith of an assignment of the lease and contract that he already had assigned to the bank, the assignment made to appellee being on a separate paper. The appellee had no knowledge of the assignment of the contract to the bank until after appellee had filed its assignment for record in the recorder ’s office of Livingston county. The bank had no notice of the independent assignment of the contract by Aygarn to appellee. Aygarn, who is insolvent, was in actual possession of the property for which appellee and appellant bank each believed it held a contract transferring to itself all the equity of Aygarn.

The contract that Aygarn received from Earp was an assignable contract. Perkins v. Hadsell, 50 Ill. 216; Guyer v. Warren, 175 Ill. 328; Adams v. Peabody Coal Co., 230 Ill. 469. That contract, unlike a promissory note, giving the grantee certain rights in real estate, could be assigned and transferred either by an assignment on the paper itself or upon a separate instrument. i Cyc. 40. Neither the assignment to appellee nor that to appellant is under seal, although the original contract is under seal, but it has been held that in equity an assignment not under seal, of a sealed instrument, will transfer an equitable title. Barrett v. Hinckley, 124 Ill. 32. Section 28 of chapter 30 of the Statutes (Hurd’s) provides that: “Deeds, mortgages, powers of attorney and other instruments relating to or affecting the title to real estate in this state shall be recorded in the county in which such real estate is situated. ’ ’ Section 30 provides that “All deeds, mortgages and other instruments of writing which are authorized to be recorded shall take effect and be in force from and after the time of filing the same for record, and not before, as to all creditors and subsequent purchasers without notice; and all such deeds and title papers shall be adjudged void as to all such creditors and subsequent purchasers without notice until the same shall be filed for record.” The word “subsequent” as used in the recording act has reference to the recording and not to the date of the instrument, and while the transaction between a grantor and a grantee is complete upon the execution and delivery of the instrument, yet as between the grantee and third persons without notice, it is not complete until the instrument is filed for record. Doyle v. Teas, 4 Scam. 202; West Chicago Street Ry. Co. v. Morrison, 160 Ill. 288.

Any instrument affecting or relating to title to real estate may be recorded, although not acknowledged, and will operate as constructive notice to subsequent purchasers- or creditors (Reed v. Kemp, 16 Ill. 445; Willoughby v. Lawrence, 116 Ill. 11; B. & O. S. W. R. R. Co. v. Brubaker, 217 Ill. 462), and the recording of an equitable title to land operates as constructive notice, to the same extent as the recording of the legal title, to those who deal with the person having the equitable title or interest or 'others claiming under him. Powell v. Jeffries, 4 Scam. 387.

Appellants, Eylar and the bank, having failed to record the assignment of the contract held by them, had no equitable title that could affect the rights of third parties who without notice of the rights of appellants might secure the interest of Aygarn, who was in possession of the premises. Appellee by placing its equitable assignment on record before it had any notice of the equities of Eylar or the bank, secured, for its equitable right and title, precedence over any right of Eylar or the bank. The trial court properly held that the advances made by appellee on the faith of its assignment were a prior lien to the loan made by the bank on the strength of the assignment to its president.

The decree contains no provision or order concerning the repayment of the $1146 that the bank paid to Earp to secure the deed which clearly was a lien prior to any claim of appellee. Appellee had notice that the $1100 and rent was due to Earp, and the bank having paid that, the grantee of the bank should have been subrogated to the rights of the bank in that regard. Appellee argues that appellants have not asked that the doctrine of subrogation be applied to the case. Appellee is the complainant and is the party asking for equitable relief, and can only have such relief as it is equitably entitled to. The allegations of the bill show the equities of the parties concerning the sum paid Earp in the original contract. Appellants, defendants, are contending that all the equities in the property they are in possession of are with them. The decree should have preserved to appellants any equities they were entitled to.

Appellants insist that appellee by not making the tender on the trial and keeping it good has waived its right to its prior lien. We cannot agree with that contention. The parties are in a court of equity and must do equity. The court should have decreed that the sum of $1146 and legal interest thereon from the time that sum was paid by the bank for the deed should have been paid to Earp, the grantee of the bank, from the first proceeds of the sale after the payment of costs, then the sum due appellee should be paid with legal interest from the date of the decree and the remainder if any should be paid to Earp the holder of the legal title by deed from the bank.

Appellee has assigned as a cross error that the trial court erred in not allowing interest on the money advanced by it to Aygarn. While the evidence shows that $1200 was advanced by appellee to Aygarn about the time the assignment of July 2, 1903, was made to appellee, it also shows that Aygarn continued to ship grain to appellee in large quantities and drew drafts on appellee until some time in February, 1904. The sum due appellee appears to be a balance due on an open account and there is no evidence of an account stated.

Appellee has made no argument or statement showing how it claims it is entitled to interest. While the statute provides that a creditor is entitled to interest on money lent or advanced, yet if there was a running account then it is not entitled to interest until after there was an account stated. As the record now is the court did not err in refusing to allow interest to appellee and it, by failing to argue or discuss its assignment of cross error, has waived such assignment. Brewer & Hoffmann Brewing Co. v. Boddie, 162 Ill. 346; Duggan v. Ryan, 211 Ill. 133; Davenport Etc. R. R. v. DeYaeger, 112 Ill. App. 537.

The decree of the court is affirmed' in so far as it finds the lien of appellee to be superior to that of the bank for the loan made to Aygarn but is reversed because it does not find that the sum paid by the bank to Earp to secure the deed was a first lien prior to that of appellee. The cause is remanded with directions to enter a decree pursuant to this opinion.

Affirmed in part and reversed in part, and remanded with directions.


source: Caselaw Access Project

license: Public Domain

text:
    J. B. Bertolet, Administrator, Appellant, v. Callie White Stoner, Appellee.
    Gen. No. 5516.
    1. Witnesses—when party in interest competent. If the adverse party suing in a representative capacity call a party in interest and interrogate him and he is cross-examined as to matters touched upon in the direct examination, testimony of such party in interest so given is competent and cannot thereafter be objected to especially in the absence of any objection having been preserved.
    2. Administration of estates—section 81 of act construed. Under this section the court has power upon the surrender of property to proceed and determine without resort to another action the title to such property.
    3. Banks—effect of certificate of deposit. A certificate of deposit payable to the order of the depositor is in law and in fact a promissory note.
    4. Gifts—when of certificate of deposit complete. The delivery of a certificate of deposit without endorsement completes a gift thereof.
    Appeal from the Circuit Court of Ogle county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the April term, 1911.
    Reversed.
    Opinion filed October 13, 1911.
    Statement by the Court. In April, 1908, Ann Mortimer received $2000, the proceeds of a policy of life insurance on the life of her son who died in January and who was to have heen married to Callie "White (sometimes called Caroline) in March. Mrs. Mortimer deposited the money in the Leaf Eiver State Bank and took a certificate of deposit, “Payable to the order of herself or Miss Callie White.” In the following October this certificate was returned to the bank endorsed by Caroline White, and a new certificate was issued for $2000 payable the same as the first. In April, 1909, this certificate was surrendered to the bank endorsed “Mrs. Ann Mortimer, Callie M. White,” and two certificates were issued, one for $1000, payable to the order of Callie White, and one reciting that Mrs. Ann Mortimer had deposited $1000 “payable to the order of herself or Callie White.” In October, 1909, the first certificate endorsed by Miss White was surrendered and a new one issued payable to Callie White and the other certificate endorsed by Mrs. Mortimer was surrendered and a new one issued payable to the order of Mrs. Mortimer, or Callie White. These certificates all bore interest at three per cent if left- six months and none after that period. Mrs. Mortimer died and J. B. Bertolet was appointed her administrator. Callie White, whose name had become Stoner, being in possession of the certificate “payable to the order of Mrs. Mortimer or Callie White,” the administrator filed a petition requesting that she be cited into the Probate Court under section 81 of the Administration Act to obtain from her said certificate. Callie White Stoner took an appeal from the order of the Probate Court which directed the certificate to be delivered to the administrator, to the Circuit Court, and on a hearing in that court, it found that the certificate dated Oct. 21,1909, for $1000 payable to Mrs. Ann Mortimer or Callie White was at the time of the death of Ann Mortimer the property of Ann Mortimer, and that there was a contract between Ann Mortimer and Callie White Stoner that the proceeds of said certificate were to be the property of Callie White Stoner on the death of Ann Mortimer in consideration of Callie White Stoner taking care of Ann Mortimer during her lifetime; that Callie White Stoner did care for Ann Mortimer during her lifetime in accordance with such ■agreement and that Callie White Stoner became entitled to the proceeds of said certifícatelas a seventh class claim against the estate of Ann Mortimer and ordered that Callie White Stoner deliver to the administrator said certificate payable to the order of Ann Mortimer or Callie White Stoner, and that so much of the proceeds of said certificate as shall not be needed for the payment of claims against said estate prior to seventh class claims shall he delivered by the administrator to Callie White Stoner.
    The administrator appeals and assigns errors upon the order of the circuit court, and Callie White Stoner assigns cross errors.
    Baxter & Wirick, for appellant.
    J. C. Seyster, for appellee.
   Mr. Presiding Justice George W. Thompson

delivered the opinion of the court.

On the hearing in the circuit court Callie White Stoner was a witness examined by counsel for the administrator, and in response to questions asked by him testified that Ann Mortimer was 76 years of age and had lived with Mrs. Stoner the two years prior to her death; that there was a contract between Mrs. Mortimer and Callie White Stoner by which Mrs. Stoner was to care for Mrs. Mortimer as long as she lived, pay her funeral expenses when she died and have what she possessed, and that she did take good care of Mrs. Mortimer as long as .she lived and gave in detail the history of the surrender and renewal of the various ■.certificates of deposit. On cross-examination she testified that when the certificate of October 21, payable to the order of Ann Mortimer or Callie White, was issued Mrs. Mortimer was sick and sent the witness to get the certificate renewed; that she took the certificate home and gave it to Mrs. Mortimer and the latter kept it until the day before she died and then gave it to the witness and told her to keep it and she had it ever since and that she had paid Mrs. Mortimer’s funeral expenses, all her doctor bills, and for her care and put a marker at her grave, all out of her, Callie White Stoner’s, own money. She testified that she was to have the money deposited in the bank for keeping Mrs. Mortimer and that Mrs. Mortimer delivered the certificate to her before she died.

Appellant argues that Callie White Stoner, appellee, was an incompetent witness to testify to any of the matters testified to by her. She was an incompetent witness in her own behalf but she was.called and examined by the adverse party, the administrator. Section 2 of the Evidence Act makes her a competent witness when so called. The examination in chief by the administrator covered every phase of the case and the cross-examination did not inquire about anything that was not asked by the administrator. Moreover there is not an objection of any kind by either party during the entire examination, neither is there any assignment of errbr concerning the admission or rejection of evidence. The witness was a competent witness when called by the administrator, but if she had not been, the record does hot save any question for review concerning the evidence. The evidence of the witness having been introduced by appellant, who must have known of her incompetency in her own behalf, and that he alone could require her to testify, he may not now complain of his own act in making her a general witness. 3 Encyc. of Ev. 75; Hippie Exr. v. De Puie, 51 Ill. 528; Doty v. Doty, 159 Ill. 46. The evidence of this witness is substantially all there is on the subject, and appearing to be fair and credible, may not be disregarded by the court without some apparent cause.

The appellant also contends that the court had no right to try the title to the certificate of deposit on the return to the citation, but that it had the right to take the certificate from the appellee and give it to the appellant, and that the court erred in finding there was a contract by which appellee was to have said certificate for the care of the intestate, and in not finding that the administrator was entitled to said certificate free from any claim of appellee; while the appellee has filed cross errors and contends that the court erred in ordering the certificate delivered to the administrator.

Section 81 of the Administration Act gives a speedy and an inexpensive mode of finding and recovering the assets of an estate from parties who may have possession of assets or property belonging to it. The title to property as between an estate and other parties has ■ frequently been adjudicated under this section by the county court, and the rights of the parties thereto fully disposed of without having to resort to any other action. Wade v. Pritchard, 69 Ill. 279; Dinsmoore v. Bressler, 164 Ill. 211; Martin v. Martin, 170 Ill. 18; Martin v. Martin, 174 Ill. 371; Adams v. Adams, 181 Ill. 210; Taylor v. Harmison, 79 Ill. App. 380; Rinard Admr. v. Lasley, 143 Ill. App. 450; Wahl v. Jacobs, 146 Ill. App. 71. The court had full and ample authority and power to hear and determine the question who owned the certificate of deposit as between the administrator and the appellee.

The evidence introduced by appellant clearly proved a contract between Mrs. Mortimer, the decedent, and appellee; that the contract had been fully performed and that Mrs. Mortimer delivered the certificate of deposit to appellee. The evidence is that appellee had the certificate renewed the last time payable to Ann Mortimer or Callie White, the same as the old certificate, that she “took it home and gave it to her (Ann Mortimer), she kept it until the day before she died and gave it to me.” “She said she would not live, and told me I should beep the money, and the arrangements she wanted for her funeral and I made them.” “She delivered the certificate to me and I have had possession of it ever since.”

A certificate of deposit payable to the order of the depositor is in law and in fact a promissory note. Laughlin v. Marshall, 19 Ill. 390; Hunt v. Devine, 37 Ill. 137; Telford v. Patton, 144 Ill. 611; Rinard Admr. v. Lasley, 143 Ill. App. 450. If the delivery had been a mere gift without any consideration the gift was complete and perfected by the delivery of the certificate that had been issued by the bank. It was payable to the order of Ann Mortimer or Callie White. If it had been payable to the order of Ann Mortimer alone the delivery of the certificate would perfect the gift without an endorsement. 4 Am. & Eng. Encyc. of Law, 194; 14 Am. & Eng. Encyc. of Law, 1029 and 1062; Rinard v. Lasley, 143 Ill. App. 450. On the proof made by the administrator, he had no right or claim to the certificate, and the court should have discharged the appellee on the hearing in response to the citation and found that Callie White Stoner was the owner of the certificate. The judgment is therefore reversed on cross errors at the costs of appellant to be paid in due course of administration.

Reversed.

Finding of fact: We find that there was a contract between Mrs. Ann Mortimer and Callie White Stoner, which was that Mrs. Stoner was to be the owner of the certificate at the death of Mrs. Mortimer upon Mrs. Stoner caring for her and paying her funeral expenses; that Mrs. Mortimer caused the certificate to be drawn payable to the order of Ann Mortimer or Callie White Stoner and that before her death Ann Mortimer delivered the certificate to Callie White Stoner, and that Mrs. Stoner performed the contract on her part.


text:
    Rose Reeves, Appellee, v. Peoria Railway Company, Appellant.
    Gen. No. 5502.
    1. Evidence—leading question defined,. A leading question is one which puts into the mouth of the witness the words to be echoed back or plainly suggests the answer which the interrogating party desires or expects.
    2. Evidence—effect of groper question succeeding leading question. The fact that a leading question has been improperly put does not preclude the right to have an answer to a proper question.
    3. Evidence—when leading questions proper. When a litigant has testified to certain facts the adverse party or a witness, after giving his version of the transaction, may be asked leading questions to contradict the former witness.
    4. Evidence—when leading questions will not reverse. The permitting of leading questions is a matter much within the discretion of the trial court and a judgment will not be reversed for a ruling in regard thereto unless it is manifest there has been a palpable abuse or discretion and.also a substantial injury done.
    5. Instructions—when defining care required of carrier erroneous. An instruction upon this subject is erroneous which omits the words "in view of the character and mode of conveyance adopted."
    Action in case for personal injuries. Appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding. Heard in this court at the April term, 1911.
    Reversed and remanded.
    Opinion filed October 13, 1911.
    Pinkney & McBoberts, for appellant.
    Dailey & Miller, for appellee.
   Mr. Presiding Justice George W. Thompson

delivered the opinion of the conrt.

Appellee was injured while alighting from one of appellant’s street cars and brought suit for damages, claiming that she was injured by the negligence of appellant’s employes in suddenly starting the car, thereby throwing her to the pavement. A trial was had which resulted in a- verdict for appellee for $600 on which the trial court entered judgment from which this appeal is prosecuted.

The evidence shows that appellee was a passenger on an open summer car, with a running board on the side, and was accompanied by her three year old child and a lady friend; that appellee gave a signal to stop at a certain street crossing; and she testified that when the car came to a full stop she stepped down on the running board and while reaching for her child the car gave a sudden jerk, throwing her to the pavement and injuring her. The defense was that appellee stepped on the running board and fell off before the car had stopped or reached the place to stop. One of the employes of appellant testified to that effect. The witness was then asked, “How many stops and starts did your car make there on that trip that day? Did it make more than one stop and start there?” This was objected to as leading and the objection was sustained. The next question was, “How many stops and starts did your car make there at that intersection on that trip?” This was objected to “Because the question follows a leading question,” and the objection was sustained. The next question was: ‘ ‘ State whether or not the car after it stopped there that day, while this woman was alighting from the cap, suddenly started up and threw her to the ground?” Answer “No.” Counsel then objected to the question as leading and moved to exclude the answer. The court sustained the objection and excluded the answer. The appellant contends that these rulings were erroneous.

A leading question is one which puts into the mouth of the witness the words to be echoed back or plainly suggests the answer which the interrogating party desires or expects. Neither of the first two questions suggested what the answer might be. When an objection has been sustained to a question because of its leading character that is no reason for refusing to permit a witness to answer a proper question. Hence the reason stated for the objection to the second question was not a sufficient one. The last question could be answered categorically, but when a litigant has testified to certain facts the adverse party or a witness, after giving his version of the transaction, may be asked leading questions to contradict the former witness. 8 Ency. of Ev. 155. The permitting of leading questions is a matter much within the discretion of the trial court and a judgment will not be reversed for a ruling in regard thereto, unless it is manifest there has been a palpable abuse of discretion and also a substantial injury done. Funk v. Babbitt, 156 Ill. 408. We are of the opinion that the objections made to the questions should have been overruled. The latter part of the last question was objectionable for the reason that it called for a-conclusion but it was not objected to on that ground.

The first instruction given for appellee attempted to define the degree of care required of a carrier towards its passengers. The instruction is erroneous because it omits the words <£in view of the character and mode of conveyance adopted, ’ ’ or other like words. Tri City Ry. Co. v. Gould, 217 Ill. 317; Ratner v. Chicago City Ry. Co., 233 Ill. 169; Williams v. Peoria Railway Co., 148 Ill. App. 583.

Appellant contends that the second instruction given for appellee is erroneous. This instruction has been frequently approved and while it might be worded more carefully we see no error in it, but refer to it that it may on another trial be freed from the criticism urged against it.

For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Winifred Evans, Appellee, v. Lela L. Evans, Administratrix, Appellant.
    Gen. No. 5509.
    Administration of estates—who not entitled to award. A married daughter of the deceased who was living with such deceased at the time of his death is not entitled to an award where she was intending to resume her marital relations and was at least in part supported by her husband at the home of such deceased.
    Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this-court at the April term, .1911.
    Reversed.
    Opinion filed October 13, 1911.
    Rehearing denied November 23, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Snow & Haight, for appellant.
    1.1. Hanna, for appellee.
   Mr. Presiding Justice George W. Thompson

delivered the opinion of the court.

Elisha S. Singer died in LaSalle county intestate on November 12, 1909. Letters of administration were issued upon the estate of the deceased. Appraisers were appointed who made a report appraising’ the estate but did not make an allowance or award. Winifred Evans, a daughter, filed a petition in the probate court in which she objected to the report of the appraisers for the reason that they had neglected to make an award, and she set up that the deceased died while temporarily away from his residence in South Ottawa and that at the time of his death he was a housekeeper and the head of a family; that he died leaving no widow; thaf petitioner is a daughter of the deceased and that for a period of eight weeks before the death of her father and from soon after the death of her mother she, at his request, went to reside with him as a member of his family and was his housekeeper until his death, and that she had no other residence than that with the deceased and that she lived separate and apart from her husband, and that it was the intention of the deceased and of herself that she should permanently live with him as long as he lived. The probate court dismissed the petition. The petitioner appealed from that order to the circuit court, where upon a hearing the court made an order finding that the petitioner was entitled to an award, and directing the appraisers to make an allowance to her as his female child residing with him at the time of his death. The administratrix appeals from that order.

The evidence shows that Elisha S. Singer lived in South Ottawa; that his wife died on July 31, 1909; that he left surviving him four children, the appellee, George S. Singer, Lela L. Evans and Juanita Busser; that the deceased was a housekeeper and after the death of his wife lived part of the time at home and part of the time with appellee in Grand Rapids township, in LaSalle county; that appellee is a married woman who was living with her husband keeping house in Grand Rapids township at the time of her mother’s death; that about September 8, 1909, appellee and her husband stored their household goods in Grand Rapids township and she went to live with her father in Ottawa, where she stayed and kept house for him eight weeks, the two living in the house alone, until he died. Appellee stated in her evidence that during that time she was keeping house for her father. She was asked by her counsel “Who lived at that time with your father?” Ans. “I went to keep house with him.” When appellee went to her father’s house her husband went to Clarion, Iowa, to do some tiling. Appellee and her husband wrote letters to each other, and he sent her money from time to time during the eight weeks she was at her father’s while he was in Iowa, and after her father’s death the husband returned to Ottawa where he -and his wife have since been living-together in the house of the deceased. Appellee testified that she and her father lived together; that he furnished some things and she some; that her father furnished her no money “nor board nor clothes.” She admitted her husband sent her $5 from Iowa, but denied that he sent her any more, although Lela L. Evans, the sister who is administratrix, testified appellee told her she had spent $84 while at her father’s, and Ellen Busser, a daughter of Juanita Busser, testified she showed her $30 that her husband sent her. Albert Bees testified that Elisha S. Singer “said that Mrs. Evans was going to stay with him and he was very much pleased over it;” and Mrs. Perrott, a neighbor of Singer’s, testified that Singer said to him that “he was glad Winifred had come to keep house for him;” and George Singer, a son of the deceased, a witness called on behalf of appellee, testified that “she came in to stay while her husband was going to Iowa to ditch. ’ ’

The question involved is the construction of section 77 of the Administration Act, which is: “When the person dying- is, at the time of his or her death, a housekeeper, the head of a family, and leaves no widow, or surviving husband, there shall be allowed to the children of the deceased residing with him or her at the time of his or her death (including all males under eighteen years of age and all females) the same amount * * * as is allowed the widow.”

The family relations that existed between appellee and her husband while she was staying- with her father were friendly and in no way adverse. The husband of appellee was the head of his family, and his domicile was in contemplation of law his wife’s domicile and residence so long- as their relations were not adverse. Cooper v. Beers, 143 Ill. 25; Babbitt v. Babbitt, 69 Ill. 277. 'Tbe deceased was a householder and the head of his family. The question arises, could appellee be a member of two families at the same time. The design of the statute is to furnish an allowance to support the members of the family surviving the death of the housekeeper, for one year. Appellee and her husband had stored their goods until such time as he should finish his work in Iowa, or her father should not require her attention, or the husband might insist on his marital rights, and that the appellee, his wife, should accompany him and live with him. Babbitt v. Babbitt, supra; 15 Am. & Eng. Ency. of Law 812. As long as the relation of husband and wife existed and neither of them had any intention of breaking such relations the residence of the husband was in the eye of the law her residence and she could not be a member of another family.

“At common law, the husband was liable, in an action at law at the suit of any person furnishing to the wife, necessaries, suitable to her condition in life, if the wife was residing apart from him because of his wilful and improper treatment of her, or by his consent.” Johnson v. Johnson, 125 Ill. 510; Evans v. Fisher, 5 Gilm. 569; Ross v. Ross, 69 Ill. 569; McClary v. Warner, 69 Ill. App. 223; Brinckerhoff v. Briggs, 92 Ill. App. 537; Bensyl v. Hughs, 109 Ill. App. 86.

That she was with her father with her husband’s consent for a .few weeks before he died did not make her a resident of her father’s home and entitled to a daughter’s award for her support for a year from her father’s estate, so long as she was a married woman intending to renew her marital relations with her husband in the future, and was, at least in part, supported by her husband at her father’s home. We are of the opinion she was not entitled to an award.

The judgment of the Circuit Court is reversed.

Reversed.


text:
    Chris Peterson, Appellee, v. Municipal Engineering & Contracting Company, Appellant.
    Gen. No. 5520.

      Verdicts—when not disturbed. A verdict will not be set aside on review as against the evidence where not clearly and manifestly against its weight.
    Action in case for personal injuries. Appeal from the Circuit Court of Lake county; the Hon. E. W. Wright, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Cooke, Pope & Pope, for appellant.
    Claire C. Edwards and Johnson & Belasco, for appellee ; Joel Baker, of counsel.
   Mr. Presiding Justice G-eorge W. Thompson

delivered the opinion of the court.

This is an action in case by Chris Peterson, an employe, against the Municipal Engineering and Contracting Company, the master, for personal injuries averred to have been sustained because of the neglB gence of the master. The declaration contains six counts. The first count avers that defendant operated a certain plant for the manufacture of machinery, and that the plaintiff was in the employ of the defendant as a machinist under defendant’s orders; that in the performance of his duty and in the exercise of due care plaintiff was engaged in holding a square piece of iron known as a nut with a pair of pincers so that said nut might be struck by a certain hammer provided by defendant for another employe of defendant for the purpose of striking said nut; that defendant negligently furnished said other employe an unsafe hammer of the weight of seventeen pounds and the head thereof was rounded instead of flat, so that said nut when struck by said hammer would fly into the air and that defendant knew the danger incident to using said hammer for s'aid purpose and plaintiff did not; that said nut when struck by said hammer was caused to fly from said pincers by reason of said negligence of defendant and struck the eye of plaintiff causing the loss of said eye. The third count avers that plaintiff was ordered to assist in driving a key out of a certain drum and directed by defendant to hold a certain nut against said key with a pair of pincers provided by defendant for that purpose, and avers that defendant negligently provided a certain method of doing said work which was unusually dangerous, in that defendant used a certain hammer the face of which was rounded, which said danger was known to defendant and was not and could not have been known to plaintiff by the exercise of ordinary care. The fifth count avers that the method of doing the work as ordered to be done by defendant was unusual and dangerous, which danger was known to defendant and unknown to plaintiff, and the work was being done in obedience to the direct orders of defendant. The remaining counts are statements of the same negligence in different forms. Plaintiff recovered a verdict and a judgment for $1500 and the defendant appeals.

The only question presented is, does the evidence sustain the verdict and judgment, and was it error to refuse a peremptory instruction requested by appellant? The evidence shows that the appellee was employed by appellant as a machinist’s helper and that appellee was directed by his foreman to drive a shaft out of a certain pulley wheel. The shaft was of steel about two feet long and one and 15-16 inches in diameter. The wheel was placed upon blocks so as to place the shaft perpendicular, and then by striking the shaft it would be driven down and out of the wheel. Appellee was attempting to do this with a small sledge weighing six or seven pounds when the foreman passed and told him he would never accomplish it in that way. The foreman then told appellee to take a pair of tongs and hold a nut on the end of the shaft and he the foreman would strike the nut with a sledge. The foreman got a heavy sledge and used it a few minutes and then sent another man to use the sledge. The nut that was used while the foreman was using the sledge had flattened out and appellee got another nut like it. At the second or third blow by the man, the foreman sent, the nut flew out of the tongs and struck appellee’s left eye, destroying it.

The proof shows the face of the sledge was slightly rounded and that in hammering a shaft out of a wheel or pulley it is necessary to hold a smaller and softer piece of metal on the end of the shaft to keep it from becoming battered at the end; that the customary way is to use what is called a flatter which is a softer piece of metal with an iron rod wound around it for a handle so that the piece of metal when struck cannot fly away. The evidence shows that appellee had seen this kind of work done with a flatter but never before with a nut held by tongs the way the foreman ordered it done. It also shows that appellee protested against this way of doing the work and said it did not look good to him blit the foreman said they were in a hurry and to do it that way. The foreman denied ordering the work done that way, but afterwards said he did not remember what his instructions were. The jury decided the facts in favor of appellee.

It was a question of fact whether the appellee was ordered by the foreman to do the work in the manner it was being done and whether such method was negligent. The jury have decided in favor of appellee, and the judgment is not excessive; and we see no reason that will justify this court in saying it is not supported by the evidence. The judgment is affirmed.

Affirmed.


author: Mr. Justice Willis

text:
    Mary E. Plumley, Administratrix, Defendant in Error, v. County of Whiteside et al., Plaintiffs in Error.
    Gen. No. 5457.
    1. Roads and bridges—when bridges should be erected without county aid. If bridges are required over natural watercourses and the cost thereof exceeds a certain amount, county aid is appropriate, but county aid is not appropriate if such bridges are sought to be erected over mere drainage ditches.
    2. Roads and bridges—when county aid cannot be required. If highway commissioners provide for the building over a natural watercourse of a longer and larger bridge than is necessary so' as to require the county to pay one-half of the cost thereof, equity will interfere by injunction.
    3. Laches—when not defense to injunction restraining performance by county of ultra vires contract. Held, that laches was no defense to an action which sought to restrain county authorities from performing an ultra vires contract.
    4. Cities, villages and towns—when town meeting illegal. Town meetings held outside of the town are illegal even though those holding the same go into the town for the purpose of adopting the proceedings had.
    5. Counties—what not equivalent of action by county board. Action taken by the chairman of the county board and a committee appointed by such chairman while the board was not in session is not the equivalent of action by the county board.
    6. Local improvements—when contract illegally let. Where the time for the awarding of a contract pursuant to bids received is postponed a contract cannot be legally let to a bidder whose bid was received during the period of such postponement.

      Bill in chancery. Error to the Circuit Court of Whiteside county; the Hon. Emery C. Braves, Judge, presiding. Heard in this court at the April term,-1911.
    Affirmed.
    Opinion filed October 13, 1911.
    C. L. & C. E. Sheldon, for plaintiffs in error.
    Henry C. Ward, for defendant in error.
   Mr. Justice Willis

delivered the opinion of the court.

On September 24,1909, John G-. Plumley, a taxpayer and citizen of the town of Hume, in Whiteside county, filed his original bill in chancery against the county of Whiteside, in which he sought to have certain contracts for the building of seven bridges in the town of Hume declared ultra vires and void and to enjoin the county from furnishing county aid therefor. On November 8, 1909, a demurrer having been sustained to the original bill, the complainant filed an amended bill, in which he prayed for the same relief and made the town of Hume, the coinmissioners of highways of the town of Hume and Reeder & Gales, a firm of contractors, co-defendants with the county of Whiteside. The evidence was taken and reported by the master in chancery and, upon a hearing in the circuit court, a decree was entered in favor of the complainant, from which the defendants below sued out a writ of error to this 'court. After the entry of the decree, John G. Plumley, the complainant, died, and his administratrix with the will annexed was made the complainant.

Some time prior to May, 1909, two drainage districts, Nos. 1 and 3, were organized in the town of Hume, in Whiteside county, and ditches were constructed in each district, in the digging of which certain bridges were removed. On May 15,1909, the commissioners of highways of the town of Plume held a ■meeting, at which it was resolved that it was necessary to construct seven bridges over certain designated streams in said town, although said commissioners of highways had not been called upon by the commissioners of the drainage districts to rebuild said bridges as required by law. The highway commissioners at this meeting also determined that the cost of these bridges would be more than twenty cents on the $100 on the latest assessment roll; that the tax levy for road and bridge purposes for the two years last past was in each year for the full amount allowed by law, that is forty cents on each $100, the major part of which was needed for the ordinary repair of roads and bridges; and that it was therefore necessary to call upon the county board for aid, under the provisions of the statute. The highway commissioners thereupon petitioned the county board to appropriate a sum sufficient to defray one half of the cost of said bridges, and arranged for a special town meeting to vote on the proposition of borrowing sufficient funds to meet the other half of the cost of said bridges. Such special town meeting was held and voted in the affirmative on the proposition of borrowing the required sum. Some months later, the county board not being in session, the chairman of said board acted upon the petitions of the highway commissioners to the extent of appointing' a committee of three members of the board to represent the county. This committee met with the commissioners of highways, and plans and specifications for each of said seven bridges were adopted and bids for the erection of the same were asked for, to be submitted on August 14, 1909. On that date no bids were received, and the committee extended the time for presenting bids until August 24th, though no further advertisement for bids was made. On the date last mentioned, bids were received and considered and all bids-rejected except that of Fred L. Reeder, which was accepted as the bid of Fred L. Reeder and Mike Gales. It is the acceptance of this bid which complainant below sought to have declared null and void, alleging, as reasons therefor, that the streams over which it was sought to erect these bridges were not natural watercourses, but were tlie drainage ditches constructed by the drainage districts above mentioned; that the estimated length of each of these bridges was made greater than was necessary, for the purpose of increasing the cost and thereby rendering county aid necessary and proper, under the statute; and that the bid of complainant for the construction of bridge No. 3 was the lowest submitted for the construction of that particular bridge and should not have been rejected; and for other reasons which will appear later in this opinion.

One of the important questions in this case is whether or not the streams over which it was sought to erect these bridges were natural watercourses, in which case the commissioners of highways would have a right to call upon the county board to pay one-lialf of the expense thereof, provided it exceeded a certain figure, or whether these streams were merely drainage ditches, crossing highways at points where there were no natural watercourses, in which latter case the bridges should be built by the drainage commissioners without county aid. On this question we have examined the evidence carefully and are of the opinion that the preponderance of the evidence clearly shows that bridges 1, 3, 4, 5, and 7, were not over natural watercourses. At bridge No. 1 there was a shallow morass, or marshy place, dry a considerable portion of the time, through which runs a drainage district ditch. There does not appear to be any natural watercourse at this point. -Bridge No. 3 was located at what had been called Biddle Lake, but the record shows that for many years there had been no water at all in Biddle Lake and that a portion of the land formerly covered by water is now under cultivation. It appears to be established that at the point where bridge No. 3 is located there is no water except in times of freshets at which times a tile drain would take care of all water coming there. We glean the same general facts from the record with reference to bridges 4, 5, and 7, that is, that they are not located over natural watercourses. It is true, the evidence is somewhat conflicting in respect to one or two of the bridges, but it appears that the trial judge made an inspection of the sites of these seven bridges, at the request of both counsel, and we find nothing in the record which would justify us in differing from his views in that matter. With regard to bridge No. 7, it appears that the former bridge was but eleven feet long and that the highway commissioners desired to erect one twenty-two feet long, and it is quite clear from the evidence that the principal reason for lengthening this bridge was for the purpose of slightly exceeding the amount of cost, under which county aid could not be obtained. Whether this bridge No. 7 was over a natural watercourse or not, we think it clear that the attempt to construct such a bridge as was proposed was fraudulent. It seems to be conceded that bridge No. 2 has always been located over a small natural watercourse, but defendant in error contends that a two foot tile has always accommodated all the water that naturally flows there and that there was no necessity for the enlargement of the bridge. This contention is borne out by the evidence. We are of opinion that the highway commissioners planned to build bridge No. 2 much longer and larger than there was any need for on account of the existing natural watercourse, this enlargement having the effect to benefit the drainage commissioners, who, under the authority of Highway Comrs. v. Drainage Comrs., 246 Ill. 388, were required to build and pay for this bridge. In our judgment, county aid could not be asked or furnished for the building of bridge No. 2.

Plaintiffs in error contend that complainant below was guilty of such laches in filing his bill and in making the contracting parties defendants thereto as to preclude him from enjoining the county after the contract has been partially performed, and that by his acts and conduct, he is estopped from commencing and prosecuting this proceeding. This contention is based on the facts that Plumley owned land in said drainage district and paid a large amount of drainage tax thereon; that he was instrumental in having the drainage ditch dug and signed the petition therefor; that he signed the petition for a special town meeting to vote on the proposition to borrow for the expense of these new bridges; that he bid for the contract to construct one of these bridges; and that, after his bid had been rejected, he said that if he had received the contract, he would have constructed the bridge, even if he lost money by so doing. Plaintiffs in error cite a number of cases, which we have examined carefully, but we are of opinion that they have no bearing here. We fail to see any reason why the action of Plumley in the respects set out above should preclude him from bringing this action. In our judgment this is an attempt to saddle the expense of these bridges, in part, upon the county, whereas, in truth these bridges, as planned, were either to be constructed over drainage ditches, in which case no county aid could be given under the provisions of the statute, or else the bridges as planned, were made of such dimensions as would obtain county aid, while smaller structures would answer all the requirements. For this general reason we are of opinion that the bill was properly maintained and that the whole contract was properly declared null and void in its inception and entirety, even if some of the minor defects in the proceedings could not have ■been made available by a taxpayer or could not have been made available because of some delay in instituting the proceedings. We take it that the whole proceeding is utterly void, that the cost of these bridges cannot, even in part, be saddled on the county, and that that fundamental defect in the whole scheme authorized the court in entertaining the bill to enjoin.

There are a number of other defects in the proceedings which we will mention but briefly. Several of the meetings were held illegally. Most of the meetings were held entirely outside of the town; a record and resolutions were prepared, and then the officers went inside the town just long enough to adopt those proceedings. The law requiring such meetings to be held in the town intends that the public shall have a right to be present and know what is going on and what is proposed to be done and have a right to make suggestions and arguments against the proposed action. The petition of the highway commissioners of the town of Hume to the county board for county aid was never presented to nor adopted by the county board itself, but was acted upon by the chairman of the board and a committee appointed by him while the board was not in session. The letting of the contract was illegal. At the time set for presenting bids none were handed in. The committee postponed the letting for ten days and then received and accepted a bid. The law requires that there shall be a re-advertising for bids in such a case, except that the contract may be let without such re-advertising at an amount or rate not exceeding ninety per cent of that of the lowest responsible bid made and rejected at the prior public letting and bidding. Road and Bridge Act of 1883, sec. 27. Here there were no bids presented at the first letting and therefore there could be no letting at ninety per cent of the lowest rejected bid and therefore it was essential that there should be a re-advertisement. Again, the advertisement for bids fixed the amount of the bond to be required of the contractor at $5000 whereas the accepted bid amounted to much more than that sum. The statute requires a bond in double the amount of the accepted bid. The question is also raised as to whether or not the financial condition of the county was such as would render it lawful for the county to enter into this contract and appropriate the sum required for county aid for the erection of these bridges, but we do not deem it necessary for us to decide that question here, in view of the fact that the county had not entered into this contract by any action of the county board and the further fact that the’question of appropriating county aid in the erection of these bridges was voted down by the voters of the county when it was presented to them at an election called for that purpose. Plaintiffs in error urge, as a ground for reversal, that the contract was not in evidence. The contract was set out in the bill and was admitted in the answer and no proof thereof was required.

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

Affirmed.


text:
    Adlore Mailloux, Plaintiff in Error, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Defendant in Error.
    Gen. No. 5463.
    1. Animals—effect of trespassing. By the common law and under the law of this state, every owner of cattle or horses is bound to keep them from trespassing upon the close of another at his peril and is answerable for trespasses as for his own.
    2. Animals—what essential to establish liability for injury. If horses are unlawfully and wrongfully at large no redress can be had for injury to them unless caused by the malice or negligence of another.
    Action in case. Error to the Circuit Court of Kankakee county; the Hon. C. B. Campbell, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.

      W. Gr. Brooks and H. K. & II. H. Wheeler, for plaintiff in error.
    Hunter & Schneider, for defendant in error.
   Mr. Justice Willis

delivered tlie opinion of tlie court.

On the 2nd day of February, 1908, Adlore Mailloux, of the village of St. Anne, in Kankakee county, plaintiff in error herein, was the owner of a number of young stallions, which he had purchased shortly before in Wenona, Illinois, and which had been brought to St. Anne on the first day of February. These horses, twelve in number, were placed by the owner in a lot 75 feet by 300 in the village of St. Anne. This lot was enclosed by a fence of woven wire six or seven feet high, with twelve-inch plank, two inches thick, above and below the wire on the inside of the posts, which were either big ties or maple trees. The gate leading into this lot was about six feet long and practically of solid boards with woven wire on the inside of it and cross pieces from top to bottom to strengthen it. Some time during the night of February 2nd or early in the morning of February 3rd, these horses broke down this fence, letting themselves into another lot of about one acre, and from there through a gate and a barn yard to the highway. From there these horses travelled east along the highway and through a gate into a lot or field along side the right of way of the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From this field a gate opened on to the highway at the corner near the railroad right of way. Shortly after six o’clock on the morning of February 3, 1908, these horses left this last mentioned field, through the gate, and went onto and across the right of way of the railroad, when one of them was struck and killed by a south-bound passenger train of the railroad named.

The owner brought this suit against the railroad company to recover damages for the killing of the animal. There was a jury trial and a verdict of not guilty, and plaintiff below prosecutes this writ of error to review that verdict and the judgment entered thereon.

The declaration contained five counts. The first count charged that the horse was struck and killed by the negligence and improper conduct of the servants of defendant in . error in carelessly and improperly driving and managing the locomotive and train of cars. The second count charged that the servants of defendant in error did not keep a proper look out at said crossing and by reason thereof the horse was killed. The third count charged that said servants of defendant in error drove said engine upon said horse wilfully and maliciously, intending to destroy the horse. The fourth count charged that the servants of defendant in error knew that a herd of horses belonging to appellant was on the crossing, one-half mile before said engine reached the crossing, but did not slacken speed. The fifth count charged that said servants well knew of the presence of said horses on the highway and on the crossing and it became their duty to slacken speed and avoid injuring the horses, but that they so improperly managed and operated said train and engine that said horse was killed. The defendant below pleaded the general issue.

This accident occurred on the morning of February 3, 1908, at about 6:25 A. M., which was before sunrise. The morning was clear but gray, and there was enough snow on the ground to enable the tracks of the horses to be seen. This train, operated by engineer Lanahan and fireman Mills, left Kankakee at six o’clock that morning and had stopped at two stations before striking this horse. The engineer testified that, after leaving the station at St. Anne and before striking the horse, or rather, before reaching the highway crossing where the horse was struck, the headlight was lighted, the automatic bell was ringing and he had whistled for this crossing. The fireman was busily engaged in breaking coal and shovelling it into the furnace and neither of the engine crew knew that anything had been struck by their train until they reached Lafayette, Indiana, and found the cowcatcher partly broken and blood thereon. Just as the engine got to this crossing the engineer did see two horses near the engine and the pilot of the engine struck the tail of one of these horses, but it got off the path of the train all right. The horses were coming from the east and going west. The train was going southeast and the engineer was riding on the right hand, or west side of the engine, so that he could not see whether there were any other horses approaching the crossing or not. The fireman, being down on the deck of the engine shovelling coal, was not in a position to see the horses at all. The engineer testified that he was kept busy with the operation of the engine and with looking ahead along the track on his side of the engine; that, on a cold morning-like the one in question, considerable steam arose around the front end of the engine from the steam chest and interfered with a clear vision of things ahead; and that he only saw two horses on that crossing- and it was no use to stop after he saw them, obviously because they were safely off the track and because the speed of the train was such that the train could not then be stopped before the highway was reached.

There was only one eye witness to the killing of this horse and his evidence is quite contradictory. But we judge, from his evidence, which we have considered in full in the record, that these twelve horses left the field east of the right of way on a sharp trot just before this train reached the crossing, coming- out of the field by a gate close to the right of way and went at once on the track, and that two of them had crossed over the track before the train got to them. The lot, in which they had been placed by the owner the afternoon before, was about two miles from the crossing of the highway and railroad track where one of them was struck. The several gates through which they passed were found to be open during the afternoon of February 3rd, and at least some of them must have been open all night to allow of the passage of these horses, for none of them were found broken in any way. These horses were stallions, large, powerful horses, and this was the first night they had spent in that lot. They evidently became uneasy at their strange surroundings, attacked the fence in an attempt to get out, found it not strong-enough to resist them, went through it and then roamed at will, through open gates and on the highway, until one of them was killed by this train. We find no proof in this record to go to the jury under the third, fourth or fifth counts. These charged that the servants of defendant in error wilfully and maliciously intended to destroy this horse, or that, well knowing that this horse was upon the crossing, they did not slacken speed or properly manage the train, as in duty bound. • There is no evidence in the record to show that the engine crew knew that there were any horses at or near this highway crossing nor that they were in any way negligent in their manner of operating- the engine and train. The burden was upon the plaintiff below to prove negligence on the part of the defendant below or its servants and we find nothing- in the record to make a case for plaintiff. As far as the first and second counts are concerned, we do not find that plaintiff in error has succeeded in proving- any negligence or improper conduct on the part of the railroad company. It seems to be the theory of plaintiff in error that there should always be two men on an engine looking- out ahead, one on each side thereof, and that -the fact that the fireman of this engine was required by his duties to spend part of his time down on the deck of the engine, shovelling coal into the fire-box, and that be happened to be doing this work when this crossing was reached, constituted negligence on the part of the railroad company. We can-' not agree with plaintiff in error, for we can find nothing negligent in the management of this train or locomotive. By the common law, every owner of cattle, or horses, was bound to keep them from trespassing upon the close of another, at his peril, and was answerable for their trespasses as for his own. Bulpit v. Matthews, 145 Ill. 345. ut follows that if such cattle, or horses, were injured while so at large through no fault of another, the owner thereof would have no redress. Under the rules laid down in the case just cited, it is evident that these horses were unlawfully and wrongfully at large and that the owner has no redress for any injury to them, unless caused by the malice or negligence of another. We can find no evidence in this record by which to impute any negligence or malice to the conduct of the servants of defendant in error. The statutory requirements, for a train approaching a crossing, were obeyed, and we are of opinion that no blame can rest upon the engine crew.

Plaintiff in error complains of the refusal of four instructions, requested by him, and the modification of another. The refused instructions were faulty, in undertaking to tell they jury that certain things constituted negligence. Plaintiff in error also complains of certain instructions, given at the request of defendant in error, but even if they were not wholly correct, we do not deem the giving of them to be ground for reversal, as we are of opinion that a verdict for plaintiff in error could not have been sustained upon the evidence.

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

Affirmed.


author: Mr. Justice Willis-

text:
    John H. Savage, Administrator, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 5464.
    1. Passenger and carrier—effect of riding upon platform of coach. Except under- special circumstances a passenger is negligent if lie rides or goes upon the platform of a coach while the train is traveling between stations and if he is injured because of his presence upon the platform while the train is running the carrier is not liable to him in damages for his injuries.
    2. Passenger and carrier—child going upon platform. A carrier is not liable for causing the death of a child between the ages of seven and eight who was traveling with his mother and who was temporarily left by her in the seat of the coach and who in disobedience of her instructions passed through the door of the coach which had been left open (the weather being hot) and went upon the platform and in consequence fell from the train and was hilled.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Will county; the Hon. C. B. Campbell, Judge, presiding. Heard in this court at the April term, 1911.
    Reversed.
    Opinion filed October 13, 1911.
    Snapp & Hetse, for appellant; W. S. Horton and J. G-. Drbnnan, of counsel.
    Frederic D. Jordan, for appellee.
   Mr. Justice Willis-

delivered the opinion of the court.

On June 21, 1909, Mrs. Ella I. Clark was on her way from Iroquois, Illinois, to Otia, Michigan, accompanied by her three children by a former husband, Frank Pugh, aged nearly eight years, Russell Pugh, aged five and a half years, and Ella Pugh, aged about four years. At Kankakee Mrs. Clark left the Big Four train on which she had been riding, and changed, with her cihldren, to an Illinois Central train for Chicago. There was no smoking car on this Illinois Central train and the passenger coach in which she found seats for herself and her three children was next to the baggage car. The train proceeded north, stopping at all stations. Just before or just after this train stopped at Monee, a station in Will county, Mrs. Clark went with her little girl to the front, or north, end of the passenger coach in which she was riding. The front door of the car was partly open, but not so far open as to interfere with her entering the toilet room, and she left that door open as it was. She left her son, Russell, asleep, and told the other boy, Frank, to sit still while she was gone. Soon after this train left Monee, and while Mrs. Clark was still in the toilet room, these two boys were seen to run up the aisle towards the front, or north, door of the car. They were seen to pass through the car door, partly open, and disappear to the right. Some of the passengers notified the trainmen, the crew received orders at the next station to back up and hunt for the boys, which was done, and they were found dead alongside the track and east thereof. This suit was brought to recover damages for the death of Frank Pugh, the older of the two boys, for the benefit of his mother, sisters and surviving brother. The declaration contained two original and three additional counts. In one count the negligence of defendant was alleged to consist in leaving the trap doors of the vestibule open and the front door of the car open, in others the leaving of the trap doors open, in others the charge was that the car was negligently safe-guarded, managed, operated and cared for. Each count charged that appellee’s intestate was in the exercise of due care for his own Safety. One count also charged that he was in the care of his mother and that she was in the exercise of due care for his safety. One count charged that he was killed through no fault of his own or of any one in charge of him. Upon a jury trial a verdict was returned in favor of plaintiff for $7,600. On a motion by defendant for a new trial, the trial court ordered plaintiff: to remit $4,100, and upon this being done, the motion for a new trial was overruled and judgment was entered in favor of plaintiff for $3,500, from which defendant below appeals.

The passenger coach in which Mrs. Clark was riding with her children was equipped with what are known as wide vestibules. Such a vestibule consists of a trap, and a door on either side of the door leading directly into the car. The trap, when closed, is merely an extension of the car platform and acts as a roof over the car steps. The vestibule door, when closed, is nearly flush with the side of the car, but, as this door, when open, must fold back over the car steps, it cannot extend as low as the bottom car step. Therefore, when the vestibule door is closed and the trap is open, there is a hole at the bottom of the steps, between the bottom step and the bottom of this vestibule door, about 14 inches high by 28 inches long. The evidence shows that at the time of the accident here in question the trap on each side of the vestibule at the. front, or north, end of this passenger car was open, or raised, and that the vestibule doors were closed.

The baggage car, just ahead of this passenger car, had no such vestibule and its platform was only about 16 inches wide in the center and about 6 inches wide at the sides of the car, and it was fitted with hand rails, grab irons and foot stirrups for the use of trainmen in boarding and leaving such baggage car at the end. When this baggage ear was coupled to this passenger coach, there was a passage way from the coach to the baggage car about as wide as a car door, and between the end of the baggage car and the vestibule of the passenger coach there was enough space.£pr a man to pass. Without an open space there these cars could not go around a curve. There is no direct evidence in the record, from which it can be determined whether these boys, after passing out of the north, or front, door of the passenger car, fell or jumped through the hole between the car steps and the bottom of the vestibule door, or whether they fell or jumped off from the narrow platform on the end of the baggage ear. There was evidence that as they passed north in the car, the younger boy was ahead and was crying and the older boy seemed to be trying to catch hold of the younger, and there was other evidence that the older boy was ahead. The evidence is in conflict as to which body was found further south, that is, as to which one left the train first. In matters where the evidence is uncertain, counsel have conflicting theories as to what the fact must have been. Under the rules of the company, a child of the age of appellee’s intestate was required to pay half fare. There is evidence that the mother avoided paying his fare by telling the conductor that he was under five years of age, and other evidence that she made no statement on the subject. The correctness of an instruction given for appellee is questioned. We, however, find it only necessary to consider the question whether the evidence establishes a cause of action in favor of appellee against appellant.'

The natural office or purpose of a platform on a railway passenger car is to furnish a place upon which passengers may enter and leave the car. It is not intended as a place whereon a passenger may ride while the train is traversing the country. There are exceptions to this rule in behalf of a passenger going to or from a dining car or an observation car to which he has been impliedly invited by the company, or searching for a seat on a crowded train, and the like. Except under some such special circumstances, the passenger is negligent if he rides upon or goes upon the platform while the train is traveling between stations, and if he is injured because of his presence upon the platform while the train is running, the railway company is not liable to him in damages for his injuries. These rules have often been recognized and-applied. In Quinn v. I. C. R. R. Co., 51 Ill. 495, a passenger, riding on the edge of the platform or on the step, lost his foothold while the train was running and fell and was killed. The administratrix brought suit to recover damages for his death. The supreme court held that the passenger had voluntarily taken a dangerous position which resulted in his death, and that there was no reason why the company should, be made to pay damages therefor, and that no reversible error was committed in directing a verdict for the defendant, as a verdict for the plaintiff conld not have been permitted to stand. On a petition for a rehearing the court reviewed the question, mentioned the fact that, though all the seats may have been occupied, there was abundant standing room in the cars, and adhered to its decision that the company was not liable. In R. R. I. & St. L. R. R. Co. v. Coultas, 67 Ill. 398, it was treated as a want of ordinary care for a passenger to go upon a platform while the train stood npon trestle work in the dark and away from a station, without first making proper inquiries of the conductor. In P. & R. I. R. R. Co. v. Lane, 83 Ill. 448, where a passenger left his place in a passenger car and went to the baggage car and was there killed while the train was running, when he would not have have been killed if he had remained in the passenger car, it was held that the company was not liable to his administratrix unless it was guilty of wanton misconduct. In Ward v. C. & N. W. Ry. Co., 165 Ill. 462, this rule was stated and approved in language quoted hereafter on another subject. In C. & A. R. R. Co., v. Fisher, 141 Ill. 614, a case within the exceptions above stated, the authority of Quinn v. I. C. R. R., supra, was recognized. In C. & W. I. R. R. Co. v. Newell, 212 Ill. 332, which also came within the exceptions above stated, as the plaintiff there was compelled by the crowded condition of the cars to ride upon the platform and was thrown from the train by its rapid motion while rounding a curve, the court recognized the ordinary rule that it was negligence for a passenger to ride upon the platform of a moving railway train. In Taylor v. D. O. & O. R. R. Co., 10 Ill. App. 311, it was held that plaintiff, a passenger, was guilty of such negligence in riding on the platform of a passenger car at the time he received the injury that he could not recover, unless it was wantonly inflicted. In C. & N. W. Ry. Co., v. Rielly, 40 Ill. App. 416, plaintiff’s intestate, a passenger, was riding on one of the steps of a passenger car, next to the engine or on the foot-hoard at the rear of the tender of the engine, and was there killed in a slight collision. It was held that his administratrix could not recover against the company, and many authorities are there cited. In Kerr v. C. E. T. & P. Ry. Co., 100 Ill. App. 148, plaintiff went upon the platform of the car upon which he was a passenger when the train was running rapidly around a curve as it approached his station, and was thrown from the platform and injured, and brought suit to recover damages for his injuries. The trial court directed a verdict for defendant, and that action was affirmed. In Krug v. C. P. & St. L. Ry. Co., 155 Ill. App. 114, where a passenger was thrown from the platform of a moving passenger train and was killed, when the evidence showed that there was plenty of room in the coaches, a judgment for the administrator was not allowed to stand!

The rule above stated appears to have the general approval of other courts. Thus, in Hickey v. B. & L. R. R. Co., 96 Mass. 429, where plaintiff’s intestate went upon the platform of the passenger car in which he had been riding, while the train was approaching his station, and there received fatal injuries, a recovery was denied. The court there said:

“If sufficient and suitable provision be made within the cars for all the passengers, the managers of the train are not under obligation to restrict them to their proper places, nor to prevent them from acts of imprudence. If they voluntarily take exposed positions, with no occasion therefor, nor inducement therdto, caused by the managers of the road, except a bare license by non-interference, or express permission of the conductor, they take the special risks of that position upon themselves.”

Many cases are cited in 3 Thompson on Negligence, see. 2947, where the principle here under discussion ,is thus stated:

t “The general rule is that if a passenger elects to ride upon the platform of a steam railway car, without any necessity, real or apparent, for taking that position, and while so riding, is injured under such circumstances that he would not have been injured if he had not taken that position, * * * lie can not recover damages from the company. In other words, for a passenger to ride in a position of such obvious danger, without any real or apparent necessity for so doing, is generally regarded as negligence per se.”

Section 2948 is as follows:

£ £ The passenger is not excused in taking such a dangerous position by the mere fact that he can not get a seat inside the car, provided there is standing room inside, although his position when so standing would be one of discomfort; nor, when the train is running at a speed of twenty-five miles an hour, because the passenger, a boy fifteen years old, goes out upon the lower step of the platform of the car, in order to vomit, there being plenty of standing room for the purpose of vomiting in the car. Nor does the fact that a passenger upon the platform of a railroad car at the time the train started, was looking for some one by whom.to send a message to his family, excuse his contributory negligence in case he is injured. If, while riding* in this improper and dangerous position, the passenger is thrown off the train and injured, he can not recover damages, although the accident may have been in part due to the negligent manner in which the train was run. Nor will this conclusion be altered by the fact that the company may not, at the time, have a brakeman, upon the platform to warn, assist or protect the passengers although its rules require a brakcman to be there.” The exceptions to the rule are stated in succeeding sections. In 4 Elliott on Railroads, sec. 1630, many authorities are cited in support of the proposition that it is negligence, under ordinary circumstances, to stand upon the platform of a moving commercial railroad car.

The non-liability of a railroad company in such a case does not rest solely upon the ground that the passenger is negligent in taking such an exposed position. The implied contract of the common carrier of passengers upon an ordinary steam railway is to carry them witliin its passenger cars. It provides platforms by which passengers may enter and leave the cars when the train is at rest, but it does not contract to carry its passengers upon the platforms. Railroads have a right to run their passenger trains rapidly. The public demands rapid service. It is a matter of common knowledge that rapid running gives more or less of a swaying motion to a train, even upon a straight track. It is practically impossible that a track shall be absolutely level for any considerable distance. The necessary swaying of a rapidly running train makes the platform an unsafe place. Every railroad changes its direction at times, and some railroads have many such curves. A person upon a platform cannot see ahead and know when the direction is to change. The railroad company provides seats where its passengers may ride in safety inside its cars. It has a right to provide such safe seats in its ears, and its passengers cannot require it to carry them upon its platforms. No statute requires it to carry passengers upon its platforms or to furnish them protection while riding there. . The railway company violates no duty which it owes its passengers by the ordinary swaying of its trains and by running rapidly around curves. A passenger who goes upon the platform while the car is running, unless within some of the exceptions, places himself beyond the protection of his contract. If he is injured there when he would not have been injured if he had remained in his seat in the car, the company has not been negligent in its conduct towards him, it has violated no contract it impliedly made with him and no duty which it owes him, and such injury therefore gives him no cause of action against the company operating the train.

This was a vestibule train. The effect of that fact upon the general rule which we have stated, was under consideration in Ward v. C. & N. W. Ry. Co., supra. The trial court there had sustained a demurrer to the declaration. That declaration contained averments that it was the duty of the defendant, among other things, to keep the doors of the vestibule closed and the vestibule lighted, and that these and other duties were not observed by the defendant and in consequence plaintiff fell and was injured. After stating these allegations, the court said:

“It will thus be seen that the statements as to obstructions, want of light, improper condition of the vestibule doors, etc., are merely matters explanatory of the manner in which the defendant was thrown to the ground, and are only material provided it is sufficiently shown that he was justified in attempting to alight from the car at that place,—that is to say, it was not, as a matter of law, the duty of the defendant to keep the doors of the vestibule closed, the vestibule lighted, the ground near the track at that particular place free from gravel and kept lighted, etc., as an independent proposition. As a matter of law the plaintiff had no business to go upon the platform of the car, or right to attempt to leave it at a place other than the station, unless he was led to do so by some act of the employees of the defendant reasonably calculated to mislead him as to where the station was, and therefore it was a matter of no consequence to him whether the doors of the vestibule were closed, the vestibule lighted or the yard free from obstructions or not. On the other hand, if he was justified in attempting to alight from the train at that place, and failed to do so safely, exercising dne care, and his injury was caused by reason of any of the omissions or obstructions, then he would be entitled to recover, independently of such omissions or obstructions. So the question upon each of these counts must be, does it appear that he was reasonably justified in attempting to get off at the time alleged?”

While that case was reversed because one of the eleven counts was held good, yet the general rule of law we have stated was held applicable to a passenger car equipped with a vestibule. In the case before us the question does not relate to a vestibule by which passengers were to enter and leave this car, as it was that day being operated. This train ran from Centrada to Chicago. The north end of the car was next to the baggage car. The vestibule doors at the front end of this car were kept closed. No passenger entered or left this ear by the front end or was in this vestibule, till these children went into it. The passengers who rode in that car all entered and left it by the rear entrance. No passenger had any occasion to enter it. It was the way to the baggage car, to which the conductor had occasion to have access, but no passenger had any right to go to the baggage car, and no passenger had any right on any platform while the train was running, and no occasion to be on this platform at any time. It was a hot and murky day in June, and it was evidently to furnish a draft of air through the car that the front door of the car was left half way open, and the trap doors over the steps were left up. We regard it as clear, from the rules of law above stated, as applied to the situation on the platform of this car, that if an adult passenger had gone upon this platform at this time, and had fallen by reason of its swaying motion, either down the steps and under the vestibule door or off the end of the narrow platform on the rear of the baggage car, or had voluntarily attempted to leave the train by either of these ways, and had thereby been injured or killed, the appellant would not be liable for the injury.

At the time of this accident Frank Pugh was seven years, eight months and thirteen days old. Should a different rule of law apply in this case because of his infancy? Mrs. Clark boarded this train at Kankakee. Frank was the oldest of the three children whom she had with her. There was a porter on the train. He assisted Mrs. Clark and her children upon the train, carried her package into the car, found a seat for her and her children near the rear of the car, and saw her and her children safely seated. We are of opinion that appellant had the right to presume that the mother would take care of her children. We do not think that appellant was required to supply employes to watch over the children on the train, nor to see that its train was so arranged that no child upon it could get into a place of danger and be injured. Yestibuled cars are a comparatively recent invention. Many trains are yet run without them. We do not think it has ever been held that all doors on such trains must be kept closed in hot weather while the train is in motion because some child might go upon the platform and be injured or killed. There were open windows upon this car. Must the company close the windows or guard them so that no child, travelling with its parents, may by any chance crawl out of them? Must children in the aisle be protected by the company from the danger of falling as the train rounds a curve? On the contrary, we conceive it to be the duty of a parent travelling with her minor child to take care of it, and we hold that the railroad company does not assume the responsibility of such care. Moreover, there was a porter upon this train whom the mother could have called to her assistance. Instead of seeking help from any of the trainmen, she trusted Frank to obey her directions to sit still while she went to the toilet with her little girl. He failed to obey her. No one knows why the two boys went to. the front end of the car and into the vestibule and off the train. They may have been seeking the toilet where their mother had gone. When they reached the vestibule the swaying of the train may have thrown them down the steps or they may have gone upon the narrow platform of the baggage car and gone to the edge of the car and then been thrown off by the motion of the train. It is quite as probable that they thought their mother had left the train, and themselves voluntarily got off the train to join her without realizing the speed of the train and the danger. It is worthy of note that there is neither allegations nor proof that this was advertised or held out to the public as a vestibuled train or that Mrs. Clark knew that feature of the train beforehand and relied thereon in taking passage; and that this case therefore is not within the spirit of certain cases where those conditions were alleged and proved. The accident was most lamentable, and every one must sympathize with the unfortunate mother, but that is true of every ease where a human being has been injured or killed, and that sympathy cannot determine who is responsible. We do not see how we can hold appellant responsible for this accident without laying down the rule that carriers of passengers must provide nurses or special protectors for infant children riding with their parents on its trains, and we are of opinion that the law imposes no such duty upon them.

The judgment is therefore reversed.

Reversed.

Finding of facts, to be incorporated in the judgment: We find that appellant did not violate any duty which it owed to appellee’s intestate, and was not guilty of the negligence charged against it in the declaration.