text:
    The Chicago & Northwestern Railway Company v. Soren Gertsen.
    1. Crossing railroad track.—The act of attempting to cross a railroad track in a thronged city without looking and listening is per se negligence.

      2. Negligence—Instruction.—An instruction that “the jury are instructed, as a matter of law, that a railway crossing is a place of great danger; that the tracks themselves are a warning to those about to go upon them that it is dangerous, and that it is the duty of every person before going upon or across the railway track to exercise care and caution, either in looking in both directions or to listen to ascertain whether it is safe to go upon the track or otherwise, as may be shown by the evidence in the case. Held, erroneous in failing to state the degree of care required and in being in the alternative.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed January 6, 1885.
    Mr. B. C. Cook and Mr. W. B. Keep, for appellant;
    cited C. & N. W. Ry. Co. v. Dimick, 96 Ill. 45; C. & A. Ry. Co. v. Jacobs, 63 Ill. 179; C. & R. I. Ry. Co. v. McKean, 40 Ill. 236; C. R. I. & P. Ry. Co. v. Bell, 70 Ill. 108; Garland v. C. & N. W. Ry. Co., 8 Bradwell, 576.
    Mr. James B. Mann and Mr. Adolph Lund, for appellee.
   Wilson, P. J.

This suit was brought by appellee against the Chicago & Northwestern Bail way Compaujr before a justice of the peace, to recover damages for the loss of a horse and wagon destroyed by appellant’s railway train at the crossing of its tracks on Division street, in the city of Chicago. Appellee was driving west on Division street, and his horse was struck by appellant’s train coming south as appellee was attempting to cross the defendant’s railroad tracks. It is claimed by each party that the injury complained of was caused by the negligence of the other. We shall not rehearse the evidence in detail, it being sufficient to say that the testimony on the part of the plaintiff tended to show that no alarm of the approach of the train was given by bell or whistle; that the flagman failed to do his duty, and that the persons in charge of the train might, by the exercise of ordinary vigilance, have seen the danger and stopped the train in time to prevent the accident. On the part of the defendant the testimony tended to prove that the accident was due to the want of care and caution on the plaintiff’s part in attempting to cross, or while crossing, the tracks; that the bell was rung, the alarm whistle sounded, and the brakes promptly applied with all due diligence; that the plaintiff disregarded the directions of defendant’s flagman, which, if obeyed, would have averted the calamity. The evidence in relation to these and other disputed questions of fact was sharply conflicting and contradictory, The jury found for the defendant in the justice’s court, and for the plaintiff in the superior court.

The Supreme Court, as well as this court, has frequently repeated the rule that when the evidence is thus conflicting, and the merits pf the case are doubtful, each party is entitled to have the benefit of an accurate statement by the court to the jury of the law applicable to the facts of the case. And this is not merely an arbitrary or artificial rule, but is one based in sound reason. The office of instructions is to inform the minds of the jury as to the legal principles by which they are to be governed, and thus guide them in meting out justice according to law.

35To instructions were asked or given on the part of the plaintiff.

The ninth instruction asked by the defendant related to the duty of persons in respect to the use of care and caution when about to cross a railroad track, and was as follows: “The jury are instructed, as a matter of law, that a railway crossing is a place of danger; that the tracks themselves are a warning to those about to go upon them that it is dangerous, and that it is the duty of every person before going upon or across a railway track to look in both directions, and to listen to ascertain whether it is safe to go upon the tracks.” The court refused to give this instruction as asked, but gave it modified as follows: “ 9.. The jury are instructed, as a matter of law, that a railway crossing is a place of great danger; that the tracks themselves are a warning to those about to go upon them that it is dangerous, and that it is the duty of every person before going upon or across the railway track to exercise care and caution, either in looking in both directions or to listen to ascertain whether it is safe to go upon the track, or otherwise as may be shown by the evidence in the case.”

We are of opinion that the instruction as asked was proper. The Supreme Court has repeatedly sanctioned similar ins tractions. They have held, as matter of lav.that when persons are about to cross a railroad track it is their duty to use all their faculties to discover the approach of a train, not only by listening but by looking. In Chi. & R. I. R. R. Co. v. McKean, 40 Ill. 236, the court said:

“ We hold it is the imperative duty of persons traveling on a public road crossed by a railroad on the same level to use all the faculties they have, on approaching the crossing, to discover a train, not only by listening for bell or whistle, but to look out, by all means, whether there be a warning board or not, to enjoin that duty upon them.”

In Jacob’s Case, 63 Ill. 179, the court said: In his (a traveler’s) approach to such crossing, it is incumbent upon him to exercise care and caution by looking and listening for any train that may be approaching, so as to prevent the danger of a collision.” In C. & N. W. Ry. Co. v. Dimick, 96 Ill. 45, the court say: “This court has often decided that it is the duty of a person about to cross a railroad track to look and to listen for an approaching train, and it is negligence to omit that duty.”

In Chi., R. I. & P. R. R. Co. v. Bell, 70 Ill. 102, the court say: “And it is the general rule that it is deemed culpable negligence to cross the track of a railroad without looking in every direction that the rails run, to make sure that the road is clear.”

It is to be observed that these were all cases of railroad crossings at roads in the country, where there was nothing to obstruct the view or intercept the sound of an approaching train. If the law deems it negligence to omit to listen and look under such circumstances, a fortiori it would be negligence not to look and listen ata railroad crossing in a crowded city.

A like rule has been held in other States. Thus in Havens v. The Erie Ry. Co., 41 N. Y. 296, the court say: “A traveler, in crossing a railroad track, is required to exercise at least ordinary sense, prudence and capacity, which requires that he should use his ears and eyes so far as he has an opportunity to do so; and a failure to do this will be deemed to be negligence sufficient to preclude a recovery in bis favor, in case of an accident.” And in Baxter v. Troy & Boston Ry. Co., 41 N. Y. 503: “ The case to be examined by the plaintiff, required him to make a vigilant use of his eyes and. ears in ascertaining whether trains were approaching.”

So in Chi., R. I. & Pac. Ry. Co. v. Houston, 95 U. S. 697, the court said: “ But the failure of the engineer to sound the whistle or ring the bell, if such were the facts, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Hegligence of the company’s employes in these particulars was no excuse for negligence on her part. She was bound to listen and to look before attempting to cross the railroad track, and not to walk carelessly into the place of approaching danger.” The books abound in like cases. But it seems hardly to require the sanction of adjudicated cases, to justify us in holding the act of attempting to cross a railroad track in a thronged city without looking and listening, is per se negligence, and that to so hold is no invasion of the province of the jury. The fact being admitted, negligence is a presumption of law. The danger is apparent to the most casual observer; it is a danger of which the senses take cognizance without proof.

If, however, it were conceded that the instruction, as asked, did not state the law correctly, the instruction as modified was erroneous in several essential respects. Its language is in the alternative. íly it the jury were told that it was the plaintiff’s duty to use care and caution either by looking or by listening, “or otherwise as may be shown by the evidence,” that is, it would be sufficient to relieve him from the imputation of negligence, if he looked though he did not listen, or if he listened though he did not look. He need not use both his sense of sight and hearing; it was enough if he used either.

But the modification contained still another alternative, in the woi’ds “ or otherwise as may be shown by the evidence,” that is to say, it would be sufficient if the plaintiff used care and caution otherwise than by looking or listening. Precisely what was intended by the language used is not very clear, but the modification is objectionable in failing to state the degree of care required. The jury would be warranted in concluding that it was suflicient to relieve'appellee from fault if he exercised any care and caution, however slight. This is not the law. The plaintiff must have been in the exercise of ordinary care; the modification was therefore misleading.

While we regret to be compelled to send back for another trial, cases of trifling amount, we can not ignore settled rules of law which are established to control the trial of all cases, without regard to the amount involved or the parties to the suit.

The judgment must be reversed and the cause remanded for a new trial,

Beversed and remanded.


source: Caselaw Access Project

author: Bailey; J.

license: Public Domain

text:
    Isaac Horner v. Rosa Horner.
    Payment, eyidence op.—Before the complainant can recover of defendant the amount of the note or the judgment recovered thereon, she must show that she has paid it. As there is no evidence of such payment in the record, the decree is reversed.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    Opinion filed January 6, 1885.
    Mr. Allan C. Story, for appellant.
    Mr. E. B. MoOlanaiian, for appellee.
   Bailey; J.

This was a bill in chancery, brought by Bosa Horner against Isaac Horner and one Mauritz Joseph, praying for the surrender and cancellation of a certain promissory note executed by the complainant to said Isaac Horner, and a certain chattel mortgage given to secure the same, and for an injunction perpetually restraining the collection or negotiation of said note and mortgage, and also a general prayer for relief The bill alleges, in substance, that oil or about the 17th day of March, 1879, the complainant having the necessary capital for the purpose, determined to open a millinery store in the city of Chicago, and that upon the suggestion oí said Isaac Horner that his name would lend credit and commercial standing to the enterprise, associated his name with hers, and opened said store under the firm name of I. Horner & Co.; that said Isaac Horner, apprehending that he might become liable for the debts of the concern, demanded of the complainant security against such contingent liability, whereupon the complainant executed to him her promissory note for $500, dated March 17,1879, payable two years after date,with interest at the rate of ten per cent, per annum, and a chattel mortgage securing the same, upon certain household furniture of the complainant; that said business was carried on under said firm name for about five months, when, at the desire of said Isaac Horner, his name was withdrawn from the firm, and the customers and creditors of the firm notified thereof, since which time the complainant has carried-on the business in her own name; that the complainant bought and paid for all the goods purchased in the name of I. Horner & Co., and has paid the indebtedness of said firm in full, and canceled all of said Isaac Hornei,’s liabilities in connection with said firm; yet, that said Isaac Horner has made a pretended and fraudulent assignment of said note and mortgage to said Mauritz Joseph, who falsely and fraudulently claims to hold the same as a bona fide purchaser, and is about to foreclose said mortgage.

The complainant afterward filed her supplemental bill making one Philip Lichtenstadt a party defendant and alleging that snbsecjnent to the filing of the original bill said Mauritz Joseph had fraudulently assigned said note to said Lichtenstadt, who had entered judgment thereon against the complainant in the Circuit Court of Cook county by confession for $625, and was about to sue out execution thereon, and praying for an injunction perpetually restraining the collection of said judgment.

The defendants appeared and answered, and the cause afterward coining on to be heard on the pleadings and proofs, a decree was entered dismissing the supplemental bill and ordering that the complainant recover of said Isaac Horner the sum of $732.36 and costs, and that execution issue therefor.

The decree recites that the sum awarded the complainant is for the money expended by her in satisfaction of the execution issued on said 'judgment. It may be doubted whether the complainant, as the pleadings now stand, can recover of Isaac Horner the amount of the judgment even if she were shown to have paid it. There is no averment of such payment in either the original or supplemental bill, and it is not pretended that at the time said bills were filed, any such payment had been made. But waiving that question, there seems to be an entire absence of proof in the record tending to show that any such payment has in fact been made. The certificate of evidence purports to contain all the evidence adduced at the hearing, and consequently whatever proof there may be in the record bearing on that question must be sought for in said certificate. We have examined said certificate with care, and fail to find a single syllable tending to show such payment. Counsel for the complainant in his brief claims that., the record shows the execution issued on said judgment marked paid in full, but he fails to point out the place, either in the abstract or record, where such evidence may be found, and has thus imposed upon us the needless labor of a fruitless search through a voluminous record to find evidence which, if it had any existence, he could have pointed out by a single brief reference.

We think it clear that before the complainant can recover of the defendant the amount of said note or of the judgment recovered thereon, she must show that she has paid it.

Various other questions are raised, most of them questioning the regularity of the proceedings in the court below; but as the error above pointed out disposes of the case, we do not deem it our duty to consider them.

For the reason that the decree is not sustained by the evidence appearing in the record, the decree will be reversed and the cause remanded.

Decree reversed.


author: Per Curiam.

text:
    Lydia Magoon v. Henry S. Magoon et al.
    Jurisdiction—Freehold involved.—As it is sought by this proceeding to divest the respondents of their claim of freehold, and carve out of their estate a homestead and dower, a freehold is involved, and this court has no jurisdiction.

      Error to the Circuit Court of Jo Daviess county; the lion William Brown, Judge, presiding.
    Opinion filed January 16, 1885.
    Messrs. O’Brien & Shissleb, for plaintiff in error.
    Mr. R. H. McClellan, for defendant in error.
   Per Curiam.

The appellees in this case made a motion to dismiss the writ of error on the ground that a freehold was involved. The plaintiff in error claims in her bill that she was in his lifetime and until his death the wife of Richard H. Magoon, deceased, and entitled as his widow to homestead and dower in certain real estate of which said Magoon died seized. That after the death of her alleged husband she was induced by fraud to execute to one Henry S. Magoon, the son of Richard H. Magoon, deceased, and Mary I. Barnes and Josephine Magoon, his daughters, a deed to her homestead and dower in a large amount of real estate in her husband’s estate. Henry S. Magoon and the other claimants to the land claim the title in fee simple as the heirs of Richard H. Magoon, and through him by deeds or devise. The complainant claims a homestead which is a freehold estate and also dower. It is sought by this proceeding to divest the respondents of their claim of freehold and carve out of their estate a homestead and dower, the rierlit to do which they contest. We therefore conclude that a freehold is involved in this suit before us, and that the writ should have issued from the Supreme Court and not this. The motion to dismiss is therefore sustained and the writ dismissed.


author: Pillsbury, J.

text:
    Chicago & Alton Railroad Co. v. Edward Barber, Adm’r, etc.
    1. Verdict against weight oe evidence.—When, in the judgment of an appellate tribunal charged with the duty of reviewing the evidence and finding the facts, justice demands that the verdict be set aside as mani_ festly against the weight of the evidence, no substantial error appearing in the charge to the jury, the court should base its decision upon that ground, rather than noticing a technical inaccuracy in some one of the instructions.
    2. Crossing railroad track—Negligence.—Whether a person when about to cross a railroad track is guilty of negligence in failing to look up and down the track to see if any train is approaching, depends upon the circumstances of each particular case. Under the evidence in this record the court is of opinion that the deceased did not exercise that degree of care that a, reasonably prudent man would have done under the same circumstances for his own preservation, and therefore the judgment is reversed, as the verdict is manifestly against the weight of evidence.
    Appeal from the Circuit Court of Will county; the Hon. George W. Stiffs, Judge, presiding.
    Opinion filed January 16, 1885.
    On the 15th day of April, 1880, John C. Barber was killed by the ears of appellant, while crossing the side track of the railroad where it passes over Main street in the city of Braid-wood.
    At this time the appellant had its tracks crossing Main street at nearly right angles, the road running nearly north and south, and the street east and west. The center track was the main track, the others side tracks, the west one being called the Joliet track. The passenger depot is located in the northeast angle formed by the main track and the street. In the southwest angle of the street and the main track and between the main and the Joliet track, the appellant had erected coal chutes extending from the south side of Main street southerly, between the two tracks, for a distance of about two hundred feet. These chutes consisted of an elevated railroad track, and coal boxes resting upon trestlework about ten feet high, the bents being some ten feet apart. One bent of the trestlework, upon which the track in the coal chutes rests, is north of the sidewalk, the walk passing under the track between the first and second bents. About twenty feet west of the chutes a store building was located, called by the witnesses Burt’s building. The Joliet track running south from the crossing over Main street passed down this space between the chutes and Burt’s building, the eastern rail being four feet and six inches from the chutes. Between the main track and the eastern track was located the station house of a flagman employed by the appellant.
    On the day when appellee’s intestate was killed, the way freight arrived from Joliet about nine o’clock in the forenoon, and having some cars in the train that were to be placed upon the Joliet track, divided the train upon the main track, and the engine, with the cars to be switched upon the Joliet track, ran down to the switch south of the coal chutes and backed on the side track, and having gained sufficient momentum to carry the cars across Main street, the engine was detached from the cars and they ran by the force already applied, past the coal chutes and across the street, striking the deceased, who was then attempting to cross the track from the east to the west, and killing him.
    This action was brought by the appellee as his administrator to recover damages under the statute for the use of the widow. He recovered in the court below, and the defendant brings the case here by appeal.
    Mr. George S. House, for appellant;
    that the verdict is not sustained by the evidence, cited C. B. & Q. R. R. Co. v. Johnson, 103 Ill. 520; C. B. & Q. R. R. Co. v. Dougherty, 12 Bradwell, 181.
    As to negligence in person crossing railroad track: I. C. R. R. Co. v. Hetheringfcon, 83 Ill. 515; C. & A. R. R. Co. v. Jacobs, 63 Ill. 179; C. & A. R. R. Co. v. Gretzner, 46 Ill. 75; L. S. & M. S. R. R. Co. v. Sunderland, 2 Bradwell, 307; L. S. & M. S. R. R. Co. v. Clemens, 5 Bradwell, 77; W. St. L. & P. R. R. Co. v. Hicks, 13 Bradwell, 414; C. B. & Q. R. R. Co. v. Spring, 13 Bradwell, 174.
    Messrs. Haley & O’Donnell, for appellee;
    cited C. B. & Q. R. R. Co. v. Lee, 87 Ill. 454; G. W. R. R. Co. v. Haworth, 39 Ill. 346; M. Line Packet Co. v. Binninger, 70 Ill. 571; Aurora Fire Ins. Co. v. Eddy, 55 Ill. 213; City of Peru v. French, 55 Ill. 317; Lawrence v. Hagernan, 56 Ill. 68; I. C. R. R. Co. v. Dunning, 59 Ill. 192.
   Pillsbury, J.

A careful examination of the record discloses no error of the court below in its rulings upon the introduction of evidence or in its instructions to the jury, that would justify us in reversing this judgment.

The objections made to the instructions for plaintiff are of the most technical character, and if the criticisms upon them were just, the fault is so trivial that anjr correction in the regard complained of could not in the least affect the finding of the jury.

Where the testimony in a cause is so conflicting that a verdict either way would not be disturbed by an appellate tribunal as being contrary to the evidence, it is essential that the charge of the court to the jury should be such a clear and accurate statement of the law that it can be seen the jury were not misled in their application of the law to the facts.

In the opinion of the writer, when, in the judgment of an appellate tribunal charged with the duty of reviewing the evidence and finding the facts, justice demands that the verdict be set aside as manifestly against the weight of the evidence, no substantial error appearing jn the charge to the jury, the court should base its decision upon that ground, rather than noticing a technical inaccuracy in some one of the instructions (a fault discoverable, if desired, in almost any case), but which could not have been the cause of the unjust verdict, thus introducing iuto the administration of the law such fine distinctions as to puzzle even the professional mind, and resulting in the impairment of substantial right, if the ultimate effect is not to destroy the remedy by action altogether.

The instructions asked by the defendant and refused by the court were properly refused under the authority of the Penn. C. Co. v. Conlan, 101 Ill. 93, as they tell the jury that certain acts of the deceased constituted negligence. In that case the authorities were reviewed and the doctrine settled that negligence is a question of fact for the jury, and that it is no error for the court to refuse to instruct the jury “as matters of law, that certain facts per se constituted negligence bn the part of the deceased.”

The location of the side track with reference to the coal chutes and the building upon the west and south side of the street immediately north of the chutes and building, the view of trains moving from the south, by persons coming from the east, being somewhat obstructed by the trestlework of the chutes, made this crossing a very dangerous one, demanding of the defendant company as well as of persons desiring to cross the railroad track, a degree of care to avoid injury commensurate with the known character of the crossing.

The law requires that both parties exercise that degree of care that a reasonably prudent man would take for his own protection in view of the danger to be encountered, either in operating the train or in passing over the track, and it is evident that an ordinarily prudent person would take more precautions for his safety, or to avoid injury to others, when it can be seen that the act about to be done, from the circndistances surrounding its performance, is attended with great danger to life or limb, than where no such danger is or can be apprehended, or where it is less apparent.

Hence the rule that ordinary care—the degree required by law of both parties where 'each is in the exercise of a right held independent of the other—is to be measured by the exigency of the particular case, and must be commensurate with the known or reasonably to be anticipated perils attending the proposed act.

How in this case the railroad company must be held to have known the character of the crossing, as it erected the chutes and constructed its track in such a location with reference to the street as to make it more dangerous than ordinary railroad crossings at grade, and the evidence contained in the record makes it clear that the deceased also was fully advised of its perils.

The material question, then, as we view the record, is whether the defendant and the deceased exercised that degree of care required under all the circumstances of the case, and, if not, was the negligence of the deceased of that character that will prevent a recovery by the plaintiff in this action.

Admitting, for the purpose of this discussion, the evidence to be sufficient to sustain the finding of the jury that the defendant was guilty of negligence, it certainly is not shown by the proof to be of that character that raises an inference that the injury was willfully inflicted, and such being the case, before a recovery can be maintained it must be made to appear that the deceased at the time of the injury was himself in the exercise of ordinary care. C., B. & Q. R. R. v. Johnson, 103 Ill. 512.

Was the deceased, then, at the time he was killed, in the exercise of the care required of him by law?

The determination of this question of fact is cast by the law upon this court, and it is our duty to decide it from the evidence, sitting as jurors, ever remembering that the verdict of the jury below should be held as settling all doubtful questions of fact arising in the case, and which tend to establish the ultimate fact to be found by them and us—the degree of care exercised by the deceased.

The deceased was a man of about seventy-three years'of age, somewhat feeble and quite slow of movement. He lived with his aged wife upon the east side of the railroad in the city where he had resided for a long time. He was engaged in gardening and his custom was in the morning to take a basketful of vegetables upon his arm and go to the main part of the city lying west of the railroad to dispose of them to his customers.

It appears he was well acquainted with the crossing and knew the time the way freight was due each morning on its run from Joliet south. On the morning of the accident he came from his house with his basket upon his arm, his cap pulled down and a shawl, or as some witnesses state, a comforter about his neck and head, and in attempting to cross the side track, the cars struck him and running over him severed his head from his body.

The company had a flagman stationed near the crossing of the main track to warn persons of the approach of trains, and it is claimed that this flagman was not at his post and attending to his duties at the time. Upon this point the plaintiff called two witnesses who saw the accident and who state they did not hear any hallooing nor did they see the flagman there, while others called by him state their attention was attracted by hearing outcries and then saw the train strike the deceased and run over him.

The flagman, Patrick Waldron, was called by the defendant, and testified concerning the occurrence, as follows:

I live at Braidwood. Have lived there ten or twelve years.

I am flagman at Main street crossing in Braidwood. I was so employed in April, 1880. I was acquainted with the location of the depot and railroad tracks at the intersection of Main street, in April, 1880. I had occasion to pass over the tracks there, from east to west, at that time, and- prior and subsequent to that date. The coal chutes are located between the west track and the main track. The watch house or shanty is locited between the east track and main track, about midway between the two. My duties there, in 1880, were to watch people passing, and keep them from the trains coming. A person standing on the sidewalk on the south side of Main street, near my watch house, could see a train of cars on the Joliet track, opposite the chutes, all the way down from the north end to the south end of the chutes. I have seen them there frequently through the bents of the chutes. I remember the fact of an accident occurring in April, 1880, which resulted in the death of John 0. Barber. I saw the deceased on that day. He wras coming up the sidewalk, going west, when I first saw him. I gave him the signal to stop, and held up the flag. 1 approached pretty near to him—within four feet. I did not say anything to him, there was no use; he could not understand me. I had the flag in my hand. I attracted his attention by waving the flag, the same as I do to every one that passes. He stopped. I then went over to the center of Main street to warn people coming down the street. That morning the old man had on a pair of wide moccasins. They were not buttoned, but loose. He had a cap with laps to it, and a comforter over his head and down over his ears. At this time I knew they were switching on the Joliet track. When I attracted the old man’s attention, he said nothing, but stood there. He was standing there when I turned my back to him. I didn’t see him again until he was crossing the west track. I hallooed to him. At this time he was in the act of crossing the west track. Iran; I thought I could stop him, but he was beyond my reach; he kept moving. When I first saw him this time he was just stepping over the east rail of the west track. He paid no attention to my hallooing. I saw the cars coming down pretty close. I hallooed at the top of my voice; I went just up to the track—up pretty close—within a foot of the rail, I think, just so I could save myself from the cars. I was hallooing all the time. I had seen the old man at this place before. He was in the habit of passing there frequently. The day before he passed, and I had to go off the road before him, and show my flag and threaten to strike him before he would stop. The cars were making a coupling on the track at the time. He usually passed there about 9 or 10 o’clock in the day.

He further testified that prior to that time he had complained to the son of the deceased, this plaintiff, that his father would not mind the signal given him, and that the son told him it was all right, he would take care of himself.

In this statement, he was flatly contradicted by the plaintiff.

William J. Stewart, then city marshal of Braidwood, testified ;

I reside in Braidwood; have resided there about sixteen years. I remember the fact of an accident occurring there on the 15th of April, 1880. I was in Ed, Barber’s saloon talking to Ed. Barber when I heard the hallooing outside. When I went outside, I saw Paddy standing in the middle of the street hallooing with the flag in his hand. I saw the old man Barber. He Was about the center of the west track, facing west. He was north of the sidewalk. I saw the cars on the Joliet track. They were coming down the track and I should judge about two feet, from the old man. The old man was not looking around. He seemed to pay no heed to them at all. Before this I was standing inside, about three feet from the door of the saloon, talking. We heard somebody hallooing, and I jumped right out in the street and looked around. I saw the old man standing on the track and the flat car about two feet from him, He was walking the best he could; He walked very slow, at the best. He was a little north of the sidewalk. I saw Mr. Waldron. He was in the middle of the street making motions with the flag flying, and he was steering across the street toward where the old man was, hallooing pretty loud. The old man had a kind of a woolen comforter around his neck, and I think he had a cap on. I saw the car when it struck him. I was about seventy feet distant. I know Mrs. Dwyer. I did not see her there at that time. There was no woman between me and theold man at all. I am positive of that. I don’t know whether there was an engine attached or not when I first saw the cars. The cars were moving about as fast asa man could walk. I saw a person on the cars. I don’t know who it was. lie seemed to be handling the brakes. I hallooed and motioned to them to holdup. I gave these signals after the man was hit. At this time I was acquainted with the location of the streets. Iwasin the habit of passing along the south sidewalk on the south side of the street every day. A person passing along on the sidewalk south of the street from the east, when he arrives at a point four feet from the east rail of the west track he can see down the track to the south as far as the switch. In passing from Waldron’s shanty west on the south sidewalk, a person, if he pa}7s any attention, can look through the chutes and see a train of cars on the Joliet track. When I came out from the saloon onto the streets, I heard the engine bell ringing. The engine was down at the far end of the chute when I got alongside of Burt’s building.

Thomas Thornton stated: I reside in B race vil le, Grundy county. I resided there about two years. I work in the mines and run a store. In April, 1880, I was living at what is called the “ Diamond Mine,” two miles west and about a mile north from Braidwood. I had been living there nine years prior to April, 1880. At that time I remember the fact of an accident happening which resulted in the death of John C. Barber. I had just driven across the track when the thing happened. I was driving east from the west on Main street, in Braidwood. When I approached the track I heard a bell ringing. It appeared to be over behind Burt’s house. I know the location of the tracks there, at the intersection of Main street and the railroad. I have crossed there often enough. My attention was attracted by the bell as I approached the crossing. I did not hear anything else that attracted my attention before I drove across. 1 saw old man Waldron; he was standing in the street somewhere near the main track. When I passed the Joliet track, 1 saw cars on that track, moving north to where I was crossing. The cars appeared to be about 100 feet south of the sidewalk. I passed in front of them. They appeared to be in motion, coming down the track as I passed. After I drove across the main track I heard the flagman halloo. That was after I got over the main track, on the track that was on the other side of the main track. Just as I was on that track with the team I heard the flagman halloo. He appeared to halloo as loud as he was able. I pulled up the horse and looked back and saw the flagman running toward old man Barber. The old man Barber was on the Joliet track. I saw the cars when I looked back. When I first saw old man Barber, the cars were about twelve feet away, just coming onto the sidewalk. Waldron was running toward Barber. I saw old man Waldron as I crossed the track. He had his flag in his hand, unfurled. When I looked back Waldron appeared to be running toward the old man who was on the track. I thought he was going to reach him, and was about to be caught by the train. The old man did not appear Jo be attracted by the cries at all.

He did not pay any attention; he appeared to be off the sidewalk; when I first saw him he appeared to be just about the middle of the track; he was moving; that is about all; he didn’t seem to hear anything at all; he had on a winter cap just pulled down over his ears, and had some other muffler over that; he had a basket in one hand and a stick in the other. I saw the old man struck by the cars; he appeared to be hit just on the side; he was sidling toward the cars as they were approaching him; he appeared to be getting one foot over the west rail when he was struck.

Thomas Me Griffin stated:

I reside in Braidwood; have resided there about nine years; I am a grocery man. My store is on Main street. I knew John C. Barber by sight. I had seen him quite often on the street, in the springtime, peddling onions. He had a little basket of onions on his arm. I judge him to be from seventy to seven-five years of age. He was not an active man. He was a man that was considerably stooped, moved very slowly along the street. I think he generally had a cane. He seemed to walk with a good deal of difficulty. I remember of the fact of his death, on the 15th of April, 1880. I was at the Chicago and Alton depot that morning. I was standing near the depot talking with a friend. I saw this old gentleman coming up. I noticed him pass over the main track, going west, and I also noticed they had been switching these cars there. My attention, I think, was attracted to-him, just after he crossed the main track, going west. The main track was on the east side of the chutes. He seemed to he traveling along slowly, paying no attention to anything. They were switching these cars there on the Avest side of the chutes, and the old man Avas passing along on the sidewalk, and I was Avatching the old man. I thought he would stop. He still Avent on until he came to the track—the west track.

I hallooed at him; I said, look out for the cars. Mr. Waldron hallooed at him and started toward him, but he did not pay any attention to us hallooing at him at all; he kept right along. He got onto the track, and was in the act of- getting over the Avest rail when the cars struck him. At the time I first hallooed, if he had heeded the warning he could have saved himself. When I first saw the cars coming down the track they must have been 300 feet south of the sidewalk. When I first saw the old man he Avas approaching the bents that support the trestlework. I see he Avas about to go on the track, and he must have been some four or five feet from the track when I hallooed at him. I see he Avas not going to stop. An ordinary person, I should think, would have heeded the warning. 1 savv Waldron running toward him, trying to stop him; 1 heard Waldron halloo. There were several of us that hallooed. Waldron, Avlien I first saw him, was near the center of the street with his flag. Waldron got Very near to the old man; he liad to jump back in order to save himself. The old man paid no attention whatever. He was a few feet north of the sidewalk when struck. The cars were moving four or five miles an hour, I should judge. The car that hit him was a coal caí*. 1 did not notice the cars as they passed over him. I could not say whether there was anybody on the car or not. I had passed along across the tracks on the sidewalk on the south side of Main street quite frequently. A person passing on the south sidewalk west from the shanty would be able to see cars standing or moving on the Joliet track for 100 feet south of the sidewalk. 1 was attracted by the noise of the train.

William Wehb stated he was a brakeman on the wav freight, and was at the depot when the accident occurred, and saw it. He corroborates the statements of the former witnesses for the defense, as also does the baggage master at that station, J. B. Smith. J. B. Corry, also, who at the time of the accident was station master, but when called as a witness had no connection with the appellant, gives the details of the occurrence substantially as stated by the other witnesses from whose testimony we have quoted at such length.

Had the evidence of the defendant consisted alone of the statements of the flagman, the jury might have been justified in giving it but little if any weight, as he was contradicted upon a material point in his testimony, and besides, it being-his duty to prevent persons crossing the track when cars were-approaching, he had great inducements to make it appear he had not neglected his duty in that regard.

But surely, the jury had no right to arbitrarily disregard the testimony of so many witnesses who were entirely disinterested, and in no manner dependent upon the Alton road for place or position or means of livelihood, and who, so far as can be seen, had no motive whatever to speak anything but the truth.

We must therefore give their testimony credence, and doing so we can but find that at the time the deceased was attempting to cross the track the flagman was in the street with his flag unfurled and using it for the purpose of warning per-1 sons about to cross that a train was approaching. Whether the fact be established that the flagman warned the deceased by waving the flag in his face as stated by Waldron, the flagman, before he went into the street, may not be so clear, as in this statement he does not seem to be so well corroborated; but being so fully sustained in other material parts of his testimony by the witnesses named, the probability is that he is also correct in this statement.

There can be no doubt from this evidence that the deceased at that time had his ears so covered with the cap and comforter that he was prevented from hearing any ordinary signal of danger, and, in fact, failed to hear the outcries of the flagman and others when they were heard quite a distance to the west of the track; for it would be preposterous to suppose that if he had heard them he would not have heeded the warning. Neither does it appear that he made any use of his eyes to ascertain if he was in peril. He certainly could have seen the flagman in the street as others did, before he approached the track, and if, when he passed the southwest corner of the chutes and was within four feet of the east rail he had looked to the south, he must necessarily"have seen the cars backing toward the crossing; and further, we think the weight of the evidence shows that if, while passing along the walk from the main to the side track he had looked" for the train, he could have seen it through the trestlework of the chutes.

Hnder the old Practice Act which imposed the duty upon the Supreme Court of reviewing and finding the facts as well as determining the law applicable thereto, that court has said in many cases that it is the duty of persons about to cross the track of a railroad to look about them and see if there is any danger; and especially in Goddard’s case, 72 Ill. 509. where the opinion of the court gives some support to the position of counsel here, that a failure of the trial court to so instruct the jury as a matter of law, was error.

But it is evident from the later decisions of that court made under our present Practice Act, withdrawing from it the jurisdiction, in cases like the present, to determine questions of fact, that expressions found in former opinions that such and such facts were evidence of negligence or constituted negligence, were to be considered as conclusions of fact, drawn from the evidence in the particular case, and not as a rule of law applicable to any and all cases whether the circumstances were the same or different.

The distinctions to be made by the profession between expressions found in the opinions of that court, when exercising the functions of a jury and when deciding questions of law, isclearly pointed out in the cases of Penn. C. Co. v. Conlan, 301 Ill. 93, and Brown v. Aurora, 109 Ill. 105, to which we refer. From these cases it is clear that whether any given fact or facts will authorize the conclusion that the ultimate fact to be found—the negligence of the party, exists, is purely a question of fact; that the determination that negligence is established from the existence of certain subordinate facts, is an inference of fact, and not of law.

Whether, therefore, a person when about to cross a railroad track is guilty of negligence in failing to look up and down the track to see if any train is approaching, depends upon the circumstances of each particular case.

The duty of determining this question in this case is imposed by the law upon this court, and we can not evade the responsibility of declaring tlie iinpression made upon our minds by the proof, though we yield to none in our sympathy for the aged widow, who was by this sad occurrence deprived of a husband and the means of her support at the same time, nor in our desire to hold railroad companies to a strict compliance with the law that requires them to exercise a proper degree of care in so operating their roads as to prevent injury to others.

Under the evidence in this record we can but find that the deceased did not exercise that degree of care that a reasonably prudent man would have done under the same circumstances, for his own preservation, and so finding we must, under the authority of Johnson’s case, supra, reverse this judgment, as the verdict is manifestly against the weight of the evidence, and remand the cause, without passing upon the question of comparative negligence sought to be made in the case.

Judgment reversed.


text:
    Curtis Beecher v. Town of Bristol ex rel.
    Jurisdiction—Appeal.—No appeal lies to the appellate court from a proceeding instituted in the county court under chapter 107, R. S. 1874, entitled “ An act to revise the law in relation to paupers.”
    Appeal from the County Court of Kendall eonntv; the Hon. H. 8. Hudson, Judge, presiding.
    Opinion filed January 16, 1885.
    Mr. A. 0. Little, for appellant.
    Messrs. Hopkins & Aldrich, for appellee.
   Pillsbury, J.

This is an appeal by Curtis Beecher from the order of the County Court of Kendall county, requiring him to contribute toward the support of his brother, Harvey Beecher, adjudged by the court to be a pauper.

In our view any judgment we might render in the cause upon the merits would be void for want of jurisdiction in this court. "We had occasion to review the several provisions if the statute allowing appeals to this court, in Morris v. Morris, 12 Brad well, 68, and came to the conclusion that no appeal lies to this court from, the orders, judgments or decrees of the county court, except where they xvere rendered in cases coming within the provisions of section 123 of the act “ to extend the jurisdiction of county courts, and to provide for the practice thereof,” approved March 26, 1874, Bev. St. 339, and upon further consideration we adhere to the views expressed in that case.

This proceeding being instituted under Ohap. 107, Bev. St. 1874, entitled, “ An act to revise the law in "relation to paupers,” does not come within any of the classes of actions or proceedings in the county court specified in said See. 123 from which an appeal can be prosecuted to this court, but if any appeal is allowed in this case it is given by Sec. 122 of the same act, to the circuit court. The appeal must he dismissed.

Appeal dismissed,


author: Pillsbury", J.

text:
    Comm’rs of Highways of Montgomery Township v. William G. Snyder et al., etc.
    1. Mandamus—What party must show.—A party is not entitled to a mandamus unless he shows that the act required to be done is one that the respondent ought to do and that he ca,n lawfully perform.
    2. Mandamus—Commissioners op highways issuing orders.— A petition for a writ of mandamus to compel commissioners of highways to issue an order upon their treasurer for certain damages allowed the petitioner for lands taken as a highway, which contained no allegation that there was any money in the hands of the treasurer out of which the order could be paid if issued or that any tax had been levied which could be used in its payment, is subject to demurrer. The issuing of such order by the respondents upon their treasurer would, under section one of the laws of 1879, p. 78, have been unlawful unless there was money in his hands or means provided to pay it.
    Error to the Circuit Court of Whiteside county; the Hon. Joseph M. Bailey, Judge, presiding.
    Opinion filed January 16, 1885.
    Messrs. Manahan & Ward, for plaintiffs in error;
    cited Acts of 1879, § 1, p. 78; Brauns v. Peoria, 82 Ill. 11; Amos v. Burrns, 11 Bradwell, 384; Comm’rs v. Newell, 80 Ill. 594; Scheaff v. People, 87 Ill. 194; Lancaster v. Baumgarten, 41 Ill. 255.
    As to when a wilt of mandamus will be awarded: County of St. Clair v. People, 85 Ill. 396: People v. Ketchum, 72 Ill. 212; People v. Davis, 93 Ill. 133.
    Messrs. J. & J. Dinsmoor, for defendants in error.
   Pillsbury", J.

John Dorsey filed his petition in the circuit court against the plaintiffs in error, praying for a writ of mandamus to compel them to issue an order upon their treasurer for certain damages which had been allowed him for land taken for a highway. The respondents appeared and demnrred to the petition, which was overruled and a peremptory-writ ordered, and they sued out this writ of error. Dorsey having died, his personal representatives have been substituted.

An examination of the petition in this case shows that there is no allegation contained therein that there was any money in the hands of the treasurer, out of which the order could be paid if issued, or that any tax had been levied which could be used in its payment.

Section one of the Act of May 31, 1879, Sess. Laws, page 78, provides:- “That warrants payable on demand shall hereafter be drawn and issued upon the treasurer of this State, or of any county, township, city, school district, or municipal corporation, or against any funds in his hands, only when at the time of the drawing and issuing Of such warrants, there shall be sufficient money in the appropriate fund in the treasury to pay said warrants.”

It is quite evident from the provisions of this act taken as a whole, .that the first section was intended to apply to all public authorities having the power to assess and collect taxes for the necessary expenditures in public affairs.

The language of the act seems to be broad enough to include commissioners of highways, although not specifically named, and we entertain no doubt such was the intention of the legislature.

The issuing of an order by the respondents upon their treasurer would therefore have been unlawful, unless there was money in his hands, or means provided, to pay it.

A party is not entitled to a mandamus unless he shows that the act required to be done is one that the respondent ought to do, and that he can lawfully perform.

A clear right to the writ does not appear upon the face of the petition in this case, and the writ should have been refused.

The judgment of the court below overruling the demurrer and granting the writ will be reversed and the cause remanded.

Judgment reversed.


author: Pillsbuey, J.

text:
    Arthur M. Rugg et al. v. John M. Davis.
    1. Contract—Acceptance of.—If a proposition be accompanied with certain conditions or limitations, the acceptance must correspond to it exactly, for if any alteration be suggested, or any exception be made to its exact terms, the provisional acceptance becomes merely a new proposition.
    2. Board of trade contract.—Where the offer of appellants was to take ten cars “new No. 2 white corn; new high mixed corn,’' over that amount being at their option, and the acceptance was entire for ten cars of yellow and ten cars of white, and the variance in the quality was sought to be obviated by proving that the “yellow” com was a better quality, and under the rule of the board of trade, introduced in evidence, must be accepted in lieu of a lower grade. Held, that such regulation can only affect the fulfillment of existing contracts for future delivery of grain, and can have no bearing upon the manner of making the contract; that the attempted acceptance was a new proposition, requiring the assent of appellants to its terms to make it binding.
    Appeal from the Circuit Court of Peoria county; the Hon. H. M. Laws, Judge, presiding.
    Opinion filed January 16, 1885.
    The appellee commenced this action against the appellants to recover damages for not accepting and paying for grain alleged to have been purchased of him. by them.
    The defense was no contract. The defendants below were grain dealers in Peoria, and wrote to the appellee, a dealer in grain at Blandinsville, the following letter:
    Peobia, Ill., January 24, 1882.
    J. M. Davis, Blandinsville, Illinois.
    Will give you usual terms at your station, January or February shipments. Peoria weights and inspection.
    Hew Ho. 2 white corn, 66.
    Hew high mixed corn, 58J.
    Ho. 2 rye, 96£.
    Ho. 2 white oats, 44.
    Mixed oats, 43.

      Acceptance to reach us by noon to-morrow, and over ten cars to be at our option. Market for corn,-; oats,-; !'je, -.
    Yours truly,'
    Bugg & Betan.
    The appellee receiving this sent the following telegram to appellants:
    “January 25, 1882.
    Bugg & Bbyan, Peoria, Illinois.
    Accept your offer. Ten cars yellow and ten cars white.
    “ J. M. Davis.”
    It is admitted that the appellants received this telegram within the time stated in their proposition. On the same day the appellants telegraphed appellee: “Prices named mean delivered to Peoria. Do you so understand it?” And were answered: “ Your offer was here on track. Peoria weights and inspection.” Appellants refused then to take the grain, and appellee, alleging he was ready and willing to deliver it, brought this suit and recovered in the court below, and the defendants bring the record into this court.
    Mr. James M. Bioe, for appellants;
    as to acceptance of contract, cited Bruce v. Bishop, 43 Vt. 163; Myers v. Smith, 48 Barber, 616; 1 Parsons on Contracts, 475; Hutchinson v. Boker, 5 M. & W. 535; Rommel v. Wingate, 103 Mass. 330; Barrow v. Ker, 10 La. An. 120; Slaymaker v. Irwin, 4 Wheaton, 369; Hutchinson v. Blakeman, 3 Met. (Ky.) 80; Vassar v. Camp, 11 N. Y. 446; Merriam v. Lopsley, 2 McCrary, C. C. 606.
    The agreement and understanding must have been expressed by overt act: Jenness v. Mount Hope Iron Co., 53 Me. 21; Nichols v. Mercer, 44 Ill. 252; Kimball v. Custer, 73 Ill. 393; Merchants Ins. Co. v. Morrison, 62 Ill. 246.
    Messrs. Stevens, Lee & Horton, for appellee.
   Pillsbuey, J.

The evidence of the contract between these parties is contained in the letter of Bugg and Bryan of Jan uary 24th and the telegram of Davis of the next day. The subsequent negotiations related to differences which had arisen between them concerning the places cf delivery of the grain as understood by the parties, and never resulted in any final agreement.

Stated most favorably for appellee, the offer of the appellants was to purchase from him certain kinds and grades of grain at the prices named, delivered on the track at Biaudinsville, subject to Peoria weights and inspection, all over ten cars to be at their option.

Story says, in his work on Sales, Sec. 136, “ If a proposition be accompanied with certain conditions or limitations, the acceptance must correspond to it exactly, for if any alteration be suggested or any exception be made to its exact terms, the provisional acceptance becomes' merely a new proposition.” Thus, for instance, if a certain number of goods of a certain quality be ordered at the same time, though at distinct prices, the orderer is not bound to accept goods of a different quality or quantity. So, also, if goods of a certain brand or mark be ordered the orderer is not bound to receive goods of a different brand or mark, although they be of equal or superior quality.” Parsons says: “ It becomes a contract only when, the proposition is met by an acceptance which corresponds with it entirely and adequately. Many cases turn upon the question whether this assent to the proposition was entire and adequate. The principle may be stated thus: The assent must comprehend the whole of the proposition; it must be exactly equal to the extent and provisions, and it must not qualify them by any new matter. The respondent is at liberty to accept wholly or reject wholly; but one of these things he must do, for if he answers not rejecting, but proposing to accept under some modifications, this is a rejection of the offer.”

The cases of Jordan v. Norton, 4 M. & W. 155; Hutchinson v. Bowker, 5 M. & W. 535; Sivewright v. Archibald, 6 E. L. & E. 286; Bruce v. Pearson, 3 Johns. 534; Tuttle v. Love, 7 Johns. 470; Eliason v. Henshaw, 4 Wheaton, 225; and Rommel v. Wingate, 103 Mass. 327, we refer to as maintaining and illustrating the principle stated from the text books.

Tested by the rule thus declared it is quite clear that the proposition of the appellants was not accepted by appellee in any such manner as would constitute a binding contract. The offer was that they would take ten cars, over that amount being at their option, and the acceptance is entire for ten cars of yellow and ten cars white. The acceptance seems to be indivisible for the twenty cars.

Again the proposition was to purchase “Hew Ho. 2 white corn, new high mixed corn,” and the acceptance was for ten cars of “ yellow ” corn.

It is conceded that yellow corn is a different grade and quality from any grade mentioned in the offer, but this variance is sought to be obviated by proving that it is a better quality, and, under the rule of the Board of Trade of Peoria, must be accepted in lieu of a lower grade. That rule was introduced in evidence and is as follows:

Section 7. On all contracts for grain for future delivery, the tender of a higher grade, in whole or m part, than the one contracted for, shall be deemed sufficient; provided, the higher grade tendered is not of a color or quality that will depreciate the value of the other if mixed.

It will be noticed, that giving the rule the validity claimed for it by counsel, it does not purport to make contracts for parties, nor to compel a party when making a proposition to purchase one kind or grade of grain, to assent to an acceptance variant from his offer.

The regulation can onlv affect the fulfillment of existing contracts for the future delivery of grain and can have no bearing upon the manner of making the contract.

The attempted acceptance was but a new proposition which required the assent of appellants to its terms in order to make it binding. This assent they never gave.

It follows that no right of recovery was shown, and we reverse the judgment without passing upon the other questions made.

Judgment reversed.


author: Pillsbury, J".

text:
    James H. Lee et al. v. James C. Burk.
    1. Trespass by cattle—Scienter.—Where the owner of domestic animals is guilty of a trespass in permitting or allowing' such animals to enter his neighbor’s close and do damage, he is chargeable with the consequential damages sustained by the plaintiff growing out of such trespass to his premises, whether the owner had or had not notice that the animals had a vicious propensity to do the particular act.
    2. Trespass by Texas cattle—Communication thereby op pever —Scienter.—While a party may have the legal right to keep in his possession in this State, Texas or Cherokee cattle, yet if he wrongfully allows them to mingle with his neighbor’s cattle and they thereby communicate fever to such cattle, he is answerable for all the damages, botli direct and consequential, that result from, their trespasses, and this without regard to his knowledge of their condición.
    ■ Appeal from the Circuit Court of Kankakee county; the Hon. Franklin Blades, Judge, presiding.
    Opinion filed January 16, 1885.
    This action was commenced by appellants against the appellee, to recover damages for the loss of certain native cattle alleged to have died from Texas fever communicated to them by Texas or Cherokee cattle belonging to the appellee.
    The declaration originally filed contained six counts, but a demurrer being sustained to all but the first and sixth counts, a trial was had upon those two alone.
    A trial resulted in a verdict and judgment for the defendant below, and the plaintiffs bring the record here by appeal.
    Mr. H. Boring, for appellant;
    cited R. S. 1883, Ch. 54, § 20; R. S. 1883, p. 136, §§ 5, 6, 7; Salzenstein v. Mavis, 91 Ill. 391.
    Mr. T. P. Boneield, for appellee;
    as to scienter, cited Keightlinger v. Egan, 65 Ill. 235; Wormley v. Gregg, 65 Ill. 257; Spray v. Ammerman, 66 Ill. 309; Hite v. Blandford, 45 Ill. 9; Saunders on Negligence, 92.
   Pillsbury, J".

The counts to which the demurrer was sustained by the court below are substantially like the second and third .counts of the declaration in Salzenstein v. Mavis, 91 Ill. 392, under which it was held no recovery could be had. .This case fully sustains the action of the court below in its judgment upon the demurrer.

The first and sixth counts seek a recovery upon the ground that the defendants, being in possession of Texas or Cherokee cattle, and knowing they would impart disease to native cattle, negligently allowed them to escape and enter the close of the plaintiffs, and mingle with the native cattle of the plaintiffs kept in said close, and that such native cattle died from disease communicated to them by the said cattle of the defendants.

The evidence strongly tended to support these counts, but the defendant denying the averment of the knowledge upon his part that his cattle would impart disease to native cattle, the plaintiff below, upon the trial, asked leave of the court to strike out such allegation, but the court holding such averment essential to a recovery, disallowed the motion.

The court also instructed the jury for the defendant, that the plaintiffs could not recover unless the scienter was shown by the proof.

The only question we propose to notice is raised by this ruling of the court.

By the common law every man was bound to keep his cattle upon his own land at his peril, or respond in damages for their trespasses; but in Seely v. Peters, o Gil. 130, this rule was held inapplicable in our State, and the doctrine advanced that owners of cattle had the right to permit them to run at large, and that an owner of land was required to fence against them or he could not recover damages for any injury committed by thorn. Section one of chapter eight of the Revised Statutes of 1874, changes the rule declared in Seely y. Peters, by prohibiting the running at large of cattle in the absence of a vote of the people of the county allowing them to do so.

We think that the effect of this statute is to practically reenact the common law upon the subject, and that now in this State, in any locality where no vote has been had, every man must keep his cattle from his neighbor’s premises, or respond in damages for injuries committed by them.

The policy of the law has been changed. Prior to this enactment first becoming alaw, cattle were allowed to run at large by the general law, localities being empowered to prohibit them by municipal action; now, however, the prohibition is general with the power invested in certain political divisions of the State to adopt the former rule if it should be desired bv the people.

In the present case the proof tends strongly to show that the Texas or Cherokee cattle of the appellee broke through the fence surrounding the premises of the appellants, where their native cattle were kept, and communicated to them Texas fever, so called, from which they died.

If the cattle of appellee thus entered the close of the appellants, they were trespassers in our view of the law, as there is no proof that cattle were by any local regulation allowed to run at large.

These cattle, then, being, as shown by the proof, "wrongfully upon the premises of the appellants, the question is presented whether they can recover for the loss of their native cattle from the disease communicated by those of appellee without proving that the appellee had notice that his cattle would communicate such disease to native cattle; in other words, without proving the scienter.

As early as Anderson v. Buckton, Strange, 192, it was held, that the entry of diseased cattle into plaintiff’s close, by which plaintiff’s cattle were infected, was a trespass, and the injury to plaintiff’s cattle could be abeged by the way of aggravation of damages in trespass, or recovered in a distinct action as consequential damages, and where also it is said “ if a man enter and chase and kill my cattle, that is a distinct wrong, but yet may be joined as a matter of aggravation.” In Ellis v. Loftus Iron Co., 10 C. P. L. R. 10, 11 Moak, 214, the action was brought to recover damages to plaintiff’s mare caused by the defendant’s negligence. It appears that ahorse belonging to the defendant and the mare of the plaintiff were being depastured in adjoining fields, and the horse, by biting and kicking the mare through the fence, committed the injury complained of, and it was shown that the horse did not cross the fence separating him from the mare. There was no evidence that the horse was of a vicious disposition, or had bitten or kicked any animal before, but on the contrary it was shown “that the horse was of as qu.et a temper as yon would wish a horse.”

Upon these facts the court held the defendant liable on the ground that some portion of the horse, at least his mouth and feet, protruded over or through the fence, and therefore had committed a trespass in law, and the damages were not too remote, and judgment was rendered for the plaintiff for the injnry to the mare. This action being brought for the consequential damages resulting from the trespass, is in accord with the case from Strange, supra, and is an authority that in such case the injury can be recovered in trespass guare clausum fregit as an aggravation of the damages, or as consequential damages arising from the tort, in an action on the case. Barnum v. Vandusen, 16 Conn., was a case where the defendant had certain sheep under his control, which, while trespassing upon the plaintiff’s land, commingled with the plaintiff’s sheep and communicated to them a dangerous disease, of which many of them died, and no sufficient justification being shown for the trespass, it was held, first, that evidence that the disease was communicated was admissible in aggravation of damages, and that the plaintiff could recover, in such action, for the loss of his sheep, as well as for the breach of his close, and second, that it was not necessary, in order to recover, for the plaintiff to prove that the defendant had knowledge that his sheep were diseased at the time they imparted disease to the sheep of plaintiff.

The case of Dolph v. Ferris, 7 W. & S. 366, was one where a bull of defendant broke into the inclosure of the plaintiff and gored the plaintiff’s horse. The action was commenced before a justice of the peace, the claim being for damages, the plaintiff claiming “ $75 for defendant’s bull killing plaintiff’s horse.” The lower court took the view that the damages were only recoverable in an action on the case, of which the justice had no jurisdiction in that State, and ordered judgment for the defendant. Upon appeal the court held, that as the justice of the peace had jurisdiction of an action of trespass quare clausum fregit, and the evidence showing that the bull in breaking and entering the close of plaintiff had committed a trespass for which its owner was liable, the loss of the horse could well be alleged as an aggravation of damages, and such course was preferable, as it settled the entire controversy in one suit instead of two, with half the trouble and expense, and the judgment was reversed.

In Beckwith v. Shoreditch and Hatch, Burr. 2092, the defendants with their guns and dogs entered plaintiff’s close to hunt, and one of the dogs, without the knowledge of defendants, happened to escape from them and run into the paddock, and pulled down and killed one of plaintiff’s deer. The court held that defendants were liable for the loss of the deer, without requiring the plaintiff to prove that the dog was accustomed to attack deer, and that the defendant knew it. This decision was based upon the ground that the defendants were themselves trespassers, and taking the dogs with them, they were liable for the damages done bv the dogs, as well as for that committed by them upon the plaintiff’s premises.

It would seem from these authorities, that where the owner of domestic animals is guilty of a trespass in permitting or allowing such animals to enter his neighbor’s close and do damage, he is also chargeable with the consequential damages sustained by the plaintiff growing out of such trespass to his premises, whether the owner had or had not notice that the animals had a vicious propensity to do the particular act which resulted in such damage. And no good reason is perceived why this should not be so. A man owning cattle keeps them in his own inclosure, where he lawfully may, and is therefore guilty of no negligence; the duty of his neighbor is likewise to keep his cattle upon his own land at his peril, but instead of doing so,' in violation of his duty allows or permits them to trespass upon his neighbor and mingle with his animals, and in consequence of some contagious disease with which they are infected, though unknown to him, they communicate such disease to the cattle of his neighbor, of which they die.

There can be no sound reason for holding in such case that the plaintiff who has been guilty of no fault or wrong, should suffer the loss rather than die one who, by a failure to perform a duty imposed upon him by the law, has wofked such mischief and loss to the plaintiff.

While under the opinion in the Salenstein case, supra* the defendant in this case may have had the legal right to bring into this State and have in his possession Texas or Cherokee cattle, he certainly can not claim the right, under that decision or the statute, to allow them to roam over and trespass upon appellant’s close, with any greater immunity than if they were native cattle. Placing them upon the same footing as native cattle, he is equally responsible for their trespasses and for damages consequentially resulting therefrom, and alike required to keep them on his own premises.

If appellee had the legal right to keep in his possession such cattle in this State, then while keeping them where he lawfully might, he would not be liable for any injury caused by their communicating disease to the native cattle coining in contact with them (at least such would seem to be the holding of the court in the above case); yet this view is not in conflict with the rule we have announced, that if he wrongfully allow them to mingle with his neighbor’s cattle and thereby communicate fever to them, he is answerable for all the damages, both direct and consequential, that results from their trespasses, and this wdfchout regard to his knowledge of their condition.

We therefore conclude there is error in the record, and the judgment will be reversed and the cause remanded, with leave to amend the pleadings if the parties shall be so advised.

Judgment reversed.


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    The People, use, etc., v. Thomas S. Beach.
    Pleading.—Under our practice, a defendant may interpose as many defenses by plea as he may have, and if he succeed in establishing any one of such defenses he recovers, and the defense may as well be established by the admission of the facts alleged in a plea by demurrer as by evidence upon the trial upon issue joined. As the second plea in this case constitutes a complete bar to the action, the judgment is affirmed.
    Appeal from the Circuit Court of Whiteside county; the Hon. John Y. Eustace, Judge, presiding.
    Opinion filed January 16, 1885.
    This was an action of debt against the appellee, Beach, and his sureties, upon his bond as sheriff of Whiteside county. The declaration is in the usual form, setting out the recovery of a judgment, the issuance of execution thereon, the delivery thereof to Beach, the possession and ownership in Thomas H. B. Davis of personal estate, subject to levy under such execution, at the date of delivery aforesaid, with the assignment that Beach, as sheriff, did not, before the return day of the execution, cause to be made the moneys, or any part thereof, and did not, nor would make return of said execution, as there in commanded.
    The second assignment charges that the execution of ¡Reuben Davis, on the 9th day of May, 1881, against Thomas H. B. Davis, was placed in defendant Beach’s hands to bemxecuted, as sheriff; that at that time the defendant in such execution was in possession of goods and chattels of the value of $5,000, .situated in Whiteside county, of which defendant, Beach, had knowledge; that defendant, Beach, did not nor would make the levy of said execution, but on May 20, 1881, permitted a constable of said county, under executions issued subsequent to the plaintiff’s execution, to levy upon the goods of said Thomas H. B. Davis, and sell $4,000 worth of the same, while the execution of plaintiff was in full force and effect, and a lien on said goods prior to the executions in the hands of said constable.
    The third assignment charges that the execution of ¡Reuben Davis was on May 9, 1881, in the hands of defendant Beach, and was then in full force and effect, and a lien of the goods and chattels of Thomas H. B. Davis, and that on May 12, 1881, sundry and divers executions were issued to and' placed in the hands of James Yarian, a constable of said county, to be levied upon the goods and chattels of Thomas H. B. Davis; that the constable, under said executions, sold a portion of the goods and chattels of Thomas H. B. Davis, on July 8, 1881, and paid over on that day to said defendant Beach, as proceeds of such sale, $1,000, to be applied by said Beach, as sheriff, in satisfaction of the execution of .Reuben Davis, and that said sum of money of right should have been turned over to Reuben Davis by said defendant Beach on demand made therefor; that said Beach has not, before or since the return day of said writ, on demand made therefor, paid over to Reuben Davis the money so received by him, or any part thereof.
    Fourth charges that defendant, Beach, whilst the execution of Reuben Davis was m full force and effect, levied said execution of $1,000 worm of goods, the property of Thomas IT. B. Davis, and neglected and refused to make sale under' said levy till July 1, 1882, and meantime so negligently and carelessly cared for sa.n goods that the same deteriorated in quality, and that the same were sold under said levy for $500,. leaving the execution of Reuben Davis unsatisfied to the extent of $800.
    The defendant filed nine pleas, and the plaintiff demurred to all of them except the first, which was a plea of nil debet, and the court adjudged the pleas good except the ninth. The defendants asked and obtained leave to file an additional plea which more fully stated the facts relied upon as a defense. Upon demurrer to this plea the court held it sufficient, whereupon the plaintiff elected to abide by their demurrer to all the pleas adjudged to he good by the court, and the defendants withdrew their first plea, and the court rendered judgment for the defendants in bar of the action, and the plaintiffs-appealed.
    Mr. 0. J. Johnson and Mr. J. E. McPherran, for appellant.
    Mr. O. F. Woodruff and Mr. J. D. Andrews,, for appellees.
   Pillsbury, J.

The argument of counsel for appellants is directed at the action of the court in ovc ruling the demurrer to the additional plea.

Perhaps the plea may be bad, as suggested by counsel, in chat it is no answer to the allegation of neglect in taking proper care of the goods, whereby they depreciated in value, and that the excuse shown by the plea for not applying the money in his hands upon the execution is not sufficient, but we find it unnecessary to decide that point, as the judgment must be affirmed upon other grounds.

The action of the plaintiff is grounded upon the alleged fact that Davis, the beneficiary, placed in the sheriff’s hands for collection, an execution regularly issued upon a judgment in his favor against one Thomas H. B. Davis.

The second plea is a traverse of this averment in the declaration. The demurrer was overruled to this plea as well as to the others pleaded, and the plaintiffs elected to stand by their demurrer.

Ho reason has been suggested by counsel why this plea is not a perfect answer to the declaration, neither have we been able to discover any.

The finding of the court is, as shown by the record, that the several pleas are a good answer to the declaration, and the plaintiffs electing to abide by their demurrer to the said pleas, the judgment should be for the defendants.

Under our practice a defendant may interpose as many defenses by plea as he may have, and if he succeeds in establishing any one of such defenses, he recovers.

And the defense may as well be established by the admission of the facts alleged in a plea as by evidence upon the trial upon issue joined.

Without passing upon the merits of the several pleas in detail, we are of the opinion that the second plea constitutes a complete bar to the action, and one good defense being sufficient, the judgment should be affirmed. Patmore v. Haggard, 78 Ill. 607.

Judgment affirmed.


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    D. P. Good v. Chas. A. Allen.
    Village attorney receiving note in satisfaction of fine.—A village attorney took a note payable to himself in satisfaction of a fine regularly imposed by a judicial officer for a,n offense against the ordinances of the village and released the defendant from imprisonment. Held, that the consideration for the note was illegal, no authority being shown for the attorney to thus compromise such judgment.
    Appeal from the Circuit Court of Iroquois county; the Hon. S. G. Bo vie, Judge, presiding.
    Opinion filed January 16, 1885.
    Suit by appellee to recover upon a certain promissory note executed by the appellant and one Irwin, on July 5, 1877, due October 1st, after date, for the sum of $54.75, and made payable to the order of the appellee. The note constituted the case for appellee. The defendant below as a witness in his own behalf, testified as follows:
    Am the defendant. Signed the note in controversy in this case. My name appears first on the note. There was no consideration for the note. The circumstances under which the note was given were as follows: My cousin, on July 4,1877, was arrested in Rossville for selling liquor, before J. W. McTaggart, police magistrate, and was fined $40 and costs, and was put in the calaboose. The proceedings were had against him under the name of Charles Jackson, he giving that name when arrested. He sent for me to help him out. I went, and Chas. A. Allen, the plaintiff, met me. He claimed to be city attorney. We went to where my cousin was, and Allen said if we would give the note in question he would let my cousin go. We did so. The judgment against my cousin has never been-satisfied.
    The transcript of the justice was also introduced showing that Jackson was arrested for selling liquor, and fined $40 and costs, and ordered confined in the village prison until such fine and costs were paid, not exceeding six mcnths.
    Upon this proof the court below found for the plaintiff and rendered judgment against the defendant for the amount of the note, and he brings the record here upon appeal.
    Messrs. Doyle, Morris & Pierson, for appellant;
    cited R. S. 1883, Ch. 38, § 9.
   Pillsbury, J.

Under the facts appearing in this record we are of the opinion that the consideration for the note was illegal. We are not aware of any authority conferred upon a village attorney by any law in this State empowering him, by virtue of his office, to take a note payable to himself in satisfaction of a fine regularly imposed by a judicial officer, for an offense against the ordinances of the village, and to release the defendant from imprisonment. If he was authorized by any order, resolution or ordinance of the village to thus compromise any judgment in its favor, it was incumbent upon him to show it upon the trial. So far as appears by this record, the release of the defendant from imprisonment was illegal, and the judgment against him is still in force.

The judgment of the court below will be reversed and the cause remanded.

Judgment reversed.


author: Pillsbury, J,

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    Daniel Davis v. City of Joliet.
    1. Appeal from justice of the peace—Judgment confessed.— The statute as to appeals from judgments of justices of the peace to the circuit court is to be construed in a technical sense, and in a confession of judgment before a justice of the peace, that will preclude the party from appealing, the amount as well as the fact of indebtedness should be acknowledged,
    2. Same.—Where the defendant pleaded guilty to the charge of violating an ordinance of a city, for which offense the ordinance imposed a flue of not less than $25 and not exceeding $100, and the justice of the peace fined him 8100 and costs of suit. Held, that an appeal will lie from such judgment.
    Error to the Circuit Court of Will county; the Hon. J. MgRoberts, Judge, presiding.
    Opinion filed January 16, 1885.
    The city instituted proceedings before a justice of the peace to recover of the defendant a penalty fc-r the violation of the ordinances of the city in selling liquor without a license. For the offense alleged, the ordinance imposed a fine of not less than $25 nor exceeding $100.
    Upon being brought before the justice, he pleaded guilty to the charge, and the magistrate fined him $100 and costs of the suit. He thereupon appealed the cause to the Circuit Court of Will county, where, upon motion of the city, his appeal was dismissed upon the ground that he had confessed judgment before the justice. He removed the cause into this court by writ of error, and assigns for error the action of the court below in dismissing his appeal.
    Messrs. Haley & O’Donnell and Mr. E. Meers, for plaintiff in error;
    cited Russell v. Lillja, 90 Ill. 327; Reiman v. Ater, 88, Ill. 300; Elliott v. Daiber, 42 Ill. 467.
    Messrs. Snapp & Breokenrtdge, for defendant in error;
    cited R. S. 1881, Ch. 79, § 62.
    The act of the defendant in the police court was a confession of judgment: Boettcher v. Bock, 74 Ill. 332; Bliss v. Harris, 70 Ill. 343,
   Pillsbury, J,

The only question arising upon this record is, whether the plaintiff in error, by pleading guilty to the charge of violating the ordinance of the city, precluded himself from appealing from the judgment rendered against him by the justice.

Our statutes, Sec. 62, Ch. 79, provide that appeals from judgments of justices of the peace to the circuit court, shall he granted ill all cases, except on judgment confessed.

The case of Elliott v. Daiber, 42 Ill. 407, originated before a justice of the peace, and the defendant, when arrested and brought before the justice, upon a capias, said he could not deny the plaintiff’s demand, and making no defense, the justice rendered judgment against him for $99.80, the amount claimed.

The defendant took an appeal from this judgment to the circuit court. A motion was made to dismiss the appeal upon the ground that it would not lie, it being contended in that case by the plaintiff, as in this, that it was a judgment confessed, and being such the defendant could not have the case tried de novo in that court. In deciding it, our Supreme Court uses this language: “Our statute provides that appeals from judgments of justices of the peace to the circuit court shall be granted in all cases, except on judgment confessed. This is technical. To sa.y, by a party sued, that he can not deny the demand, is in no sense a confession of judgment. Such a declaration confers no authority upon the justice to enter a judgment of confession as this justice understood, for he did not enter upon his docket that the defendant confessed judgment. He found against the defendant the amount claimed, because he would not deny the demand, thereby admitting the demand to be just, but making no confession of judgment. It does not follow because a defendant says he can not deny the plaintiff’s demand that he is the plaintiff’s debtor. The defendant may have claims of set-off, which he may .not choose to litigate before the justice, but be willing that the justice should find against him, so that he may take an appeal to another court, and there litigate. By construing his declaration that he could not deny the plaintiff’s demand as a confession of judgment, the right of appeal would be taken away and the party injured. Here there was no confession, nor anything equivalent to it. It was error, therefore, to dismiss the appeal.”

In that case the plaintiff claimed a certain amount to be due, and the defendant could not deny the justice of the claim and so stated, and yet it is held that there was nothing equivalent to a confession.

In the case at bar, the plaintiff did not claim any specific sum. due it for the violation of its laws. Its demand was for a sum not less than $2o nor exceeding $100. The admission of the defendant that he had violated the ordinance, in the absence of any defense by him before the justice, may be said to be an acknowledgment that he was indebted to the city under the ordinances, but it can scarcely be claimed that he confessed that the amount was the extreme penalty that the justice was authorized to inflict.

The ordinance provides for a maximum and minimum penalty, leaving the justice to determine the amount between those prescribed according to the character of the case made, and the defendant may be willing to admit a technical violation and reserve the right only to contest the evidence relied upon to show that the offense was of that character that justice demanded the imposition of the highest penalty.

Or as was said in Elliott v. Daiber, supra, he may have a set-off against the city, which he did not choose to litigate before the justice.

Under the rule stated in City of Springfield v. Hickox, 2 Gilm. 241, he could rely upon a proper claim as a set-off in this case.

As the Supreme Court holds that the statute is to be construed in a technical sense, we are of the opinion that in a confession of judgment before a justice of the peace, that will preclude the party from appealing, the amount, as well as the fact of the indebtedness should be acknowledged.

For these reasons we are of the opinion that the appeal from the justice will lie, and that the court erred in dismissing it.

The judgment of the court below will be reversed and the cause remanded.

Judgment reversed.


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    Carrie E. Agnew et al. v. John Fulton.
    Jurisdiction.—A bill in equity by the husband and heirs at law, to set aside and have declared void a warranty deed made .by the deceased wife and her husband in 1858, when the wife, to whom the property had descended from her father, was still an infant. Held, that this court has no jurisdiction, as a freehold is involved.
    Error to the Circuit Court of Ogle county; the Hon. John V. Eustace, Judge, presiding.
    Opinion filed January 16, 1885.
    Messrs. Mayborne & Chumasero, for plaintiffs in error.
    Mr. M. JD. Hathaway, for defendant in error.
   Pillsbury, J.

Isaac Boss, the surviving husband of Maria Boss, deceased, and the other plaintiffs in error as her heirs at law, exhibited this bill in the Circuit Court of Ogle county against the defendant in error, to set aside and have declared void a certain warranty deed, made by the said Maria and her husband, the said Isaac, to defendant in error, Fulton, and to have the same removed as a clond upon their title to the lands described in said deed.

The circuit court sustained a demurrer to the bill, and the complainants'sued out this writ of error.

The material averments of the bill are that Sheldon Bartholomew died at Ogle county in 1846, intestate, seized in fee of the premises described, leaving him surviving his wife, Charlotte, and the said Maria, his only child and heir at law, then an infant of the age of nine years. That said Maria, in 1851, married the plaintiff in error, the said Isaac Boss, and in 1853, still being an infant and covert, she and her husband, the said Charlotte joining therein, executed and delivered to defendant in error their deed for the premises in controversy. That said Maria Boss died intestate in 1871, and that the said Charlotte is also deceased. That defendant in error is in possession of the premises under said deed, and refuses to surrender the same to complainants or to account for the rents and profits thereof, and that said deed is a cloud upon their title, and ought to be removed, etc., and prays for account and general relief.

The point is made by plaintiffs in error that the said Maria, at the-time she joined her husband in the deed to Fulton, was incapable of making a valid conveyance on account of her being married and still unde? the age of eighteen years, and Harrar v. Wallner, 80 Ill. 197, is relied upon as showing that her deed was void, conveying no title to defendant in error.

Conceding, for the purpose of the argument, that such deed did not operate to invest Fulton with the title of said Maria to the land in question, and for the reason assigned, it is very clear from the facts alleged that a freehold is directly involved in this cause, which deprives this court of jurisdiction to authoritatively determine the questions arising upon the record.

1. The bill avers title in Maria Boss in fee, and that her deed upon its face purports to convey the land to defendant in error, and admits that but for the disability alleged it would be effectual for such purpose. The defendant in error claims to be owner in fee under said deed. The direct effect of a decree for the complainants upon this bill would be to deprive the defendant of a prima facie fee simple title as shown upon the face of the deed from her through whom the complainants claim title.

Again we think the deed operates to invest the defendant in error with a freehold estate, viz., an estate for the life of Isaac Boss, whatever effect it may have upon the remainder in fee.

Upon his marriage, in 1851, to said Maria, she then being seized of the premises, he took an estate in her lands under the laws then in force, for the joint lives of himself and wife, which would determine upon the death of his wife without issue, in his lifetime, but having children by her, these complainants, capable of inheriting the lands, he became a tenant by the curtesy initiate which became consummate upon the death of the wife in 1871, and. he thereby became such tenant for his own life, and invested with a freehold estate, which inured to the defendant in error under his covenants of warranty contained in said deed, by way of estoppel.

In this view of the case, had we the power we should be inclined to modify the decree of the court, so that the dismissal of the bill should be without prejudice to any proceedings that might be instituted after the termination of the life estate in the lands.

Having no jurisdiction, for the reasons stated we can only dismiss the writ of error, and such will be the order.

Writ of error dismissed.


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    Carrie Agnew et al. v. Robert P. Lane.
    Writ of error dismissed for the same reason as the preceding.
    Error to the Circuit Court of Ogle county ; the Hon. Jorm V. Eustace, Judge, presiding.
    Opinion filed January 16, 1885.
   Pillsbury, J.

This case is in all respects like the preceding one of the same complainants against Fulton, and must be disposed of the same way.

Writ of error dismissed.