text:
    J. B. Harris, Appellant, v. Morgan Le Masters, Appellee.
    1. Replevin, § 59*—when joint owner cannot sue in own name. The act on replevin (J. & A. ch. 119, j[ 9186 et seq.), does not give to a person owning a part of a chattel, nor to one having the right to possession of a portion thereof, the right to recover possession of the whole in an action, in his own name.
    2. Replevin, § 59*—when joint owner of check must join co-owner. The owner of a half interest in a check was not entitled to maintain replevin for the recovery of the check, without joining his co-owner.
    3. Replevin, § 67

      —when refusal to permit filing of amended affidavit is discretionary. The refusal to permit the filing of an amended affidavit in replevin was discretionary, where it, the same as the original, showed that plaintiff had no right to maintain the action without joining a co-owner of the chattel involved, as party plaintiff.

      Appeal from the Circuit Court of Madison county; the Hon. J. F. Guíham, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed November 7, 1919.
    Rehearing denied December 13, 1919.

      Certiorari denied by Supreme Court (making
    opinion final).
    J. B. Harris, pro se.

    J. M. Bandy, for appellee.

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

   Mr. Justice Eagleton

delivered the opinion of the court.

This was an action of replevin brought by appellant, J. B. Harris, against Morgan Le Masters, appellee, and Ida Emdin for the recovery of a check issued by the John Hancock Mutual Life Insurance Company, for the sum of $480.60, payable to Ida Emdin. The suit was filed June 15,1918, and addressed to the October term, 1918, of the Circuit Court of Madison county.

The affidavit filed by-appellant, on which the writ of replevin was issued, so far as necessary to be considered is as follows:

“That he is the joint owner with one Ida Emdin of a certain check * # *, for the sum of four hundred eighty and 60/100 dollars, payable to the said Ida Emdin, and that affiant is the owner of a one-half interest in said check and the proceeds thereof; * * * and that the same is in possession o.f Morgan Le Masters * * * and that the said Ida Emdin and Morgan Le Masters wrongfully detain the same, and that the said cheek * * * has not been taken for any tax *

The writ of replevin was served on appellee and the check taken from his possession and given to appellant.

At the October term, 1918, of said court, appellant was ruled to file a declaration on or before the 10th day of December, 1918, and on that day appellant caused an order to be entered dismissing Ida Emdin as a party defendant and filed a declaration against appellant as sole defendant.

Prior to the January term, 1919, of said court, appellee filed a motion to dismiss the suit for the reason that the affidavit was not sufficient on which to issue the writ of replevin.

At the January term, 1919, of said court, appellant filed a motion for leave to file an amended affidavit arid attached thereto a copy of the proposed-amended affidavit.

The court denied appellant’s motion for leave to file an amended affidavit and granted appellee’s motion to dismiss the suit and entered an order dismissing the suit, for a writ of reto'rno habendo and judgment against appellant for costs, from which this appeal is prosecuted.

In appellant’s proposed amended affidavit is set forth the issuance of the check payable to Ida Emdin and, “that affiant is the owner of a one-half interest therein, and is entitled to the/possession thereof until his lien thereon is satisfied.”

The question presented is on the ruling of the court "in refusing appellant leave to file the amended affidavit. If the court did not err in this it was not error to enter the judgment appealed from.

The statute on replevin is as follows: “That whenever any goods or chattels shall have been wrongfully distrained, or otherwise wrongfully taken, or shall be wrongfully detained, an action of replevin may be brought for the recovery of such goods or chattels, by the owner or person entitled to their possession, in any court of competent jurisdiction. ’ ’ Revised Statute (Jones & Addington, eh. 119, § 9181).

This statute does not give to a person owning a part of a chattel nor to one having the right to possession of a portion thereof the right to recover possession of the whole chattel in an action in his own name. The right must be based on an ownership or the right to possession of the whole property. In this case, unless appellant was entitled to possession of the whole property he could not maintain the suit without joining his co-owner. A plaintiff in replevin must recover on the strength of his own title when he claims as owner. Unless he has the title the suit must fail. In his affidavits appellant claimed to be the owner of a one-half interest in the check. He was seeking to get possession of the whole property. To do this he must show he was entitled to the whole property. True it is, appellant in his proposed amended affidavit stated he was entitled to possession of the property, but accompanied by the statement of facts in the affidavits it must be taken as a conclusion of appellant and one not supported by the facts.

The Supreme Court has held: “It is well settled that, in an action of replevin, a plaintiff must recover upon the strength of his own title, and, where his title is denied, the burden of proof is upon him to show a general or special property in the goods themselves.” Pease v. Ditto, 189 Ill. 456.

It may be said the question of the burden of proof did not arise in this case, but the court had the fact before it that appellant was not the owner of nor entitled to possession of the whole check in controversy. Chitty on Pleadings, page 187, lays down the rule:

“Several persons having separate and distinct interests in the property distrained, as if the goods of A, together with other goods of B, be distrained, cannot join in this action; but joint tenants and tenants in common may and should join.”

Our Supreme Court has held: “Replevin lie's for specific property capable of identification and actual return * * *, and cannot be maintained for an undivided interest or share.” Low v. Martin, 18 Ill. 286.

From the showing made by appellant in his affidavit and proposed amended affidavit under the law, he could not maintain his suit. He was not entitled to the exclusive possession of the check and was the owner of only a half interest therein, As owner of a half interest he could not maintain the suit without joining his co-owner. The trial court could see that on a final hearing appellant could not maintain his suit.

In a case of this character where the question of the right to file an amended affidavit was involved, the Supreme Court said: “The court was informed by the original affidavit of the design of affiant, * * *.

The amended affidavit, if filed, and a trial had, would have presented the same question, so that if the original affidavit had strictly complied with the statute the effort would have been vain and fruitless, for the court would have been compelled to dismiss the suit * * *. It was therefore wholly immaterial what

disposition the court made of the motion to file the amended affidavit * * *. It was a motion addressed to - the discretion of the court.” McClaughry v. Cratzenberg, 39 Ill. 118.

The court did not err in refusing to allow appellant to file an amended affidavit nor in entering the judgment entered.

Affirmed.


source: Caselaw Access Project

author: Per Curiam. Mr. Justice McBride

license: Public Domain

text:
    Louisa Storment and Nora M. Alexander, trading as Storment & Alexander, for use of Albert Watson et al., trading as Bank of Bonnie, Appellants, v. Hartford Fire Insurance Company, Appellee.
    1. Insurance, § 336*—when insurer estopped to take advantage of mistake in description of property. Where a fire insurance company’s agent authorized to solicit insurance, indorse and deliver policies and collect the premiums, prepared without any suggestion from the insured or her agent, the-incorrect description of the property contained in the policies in question, the company was precluded from taking advantage of its own mistake or that of its agent.
    2. Insurance, § 663*—when evidence tends to show insurer not misled by incorrect description of land. In an action on a fire insurance policy, where it was claimed that an incorrect description of the land upon which the building was located vitiated the policy, evidence that there was no other building of that kind or character in the village in question, and no other building occupied by the insured in such village, tended to show that the insured could not have in fact been misled as to the building or its location.
    3. Insurance, § 331*—when knowledge of agent as to ownership of premises is imputed to insurer. Knowledge of the agent of the insurer that the holder of the policy in question was not the sole owner of the premises was imputed to the insurer.
    4. Insurance, § 331*—what does not affect rule that notice to agent is notice to insurer. The rule that notice to the agent of a fire insurance company at the time of the application for insurance, of facts material to the risk, is notice to the insurer and will prevent it from insisting upon a forfeiture for causes within the knowledge of its agent, was not affected because the agent in question was a joint owner of the bank which held a mortgage against the premises in question, and loss was made payable to such bank.
    5. Insurance, § 261

      —when sale by partner will not vitiate fire policy. Where one partner sells out his .interest in the property to another, such sale will not vitiate the policy, even though there was a condition that the policy should become void if the property be sold or conveyed.

      6. Insurance, § 692*—when instruction applying iron-safe clause is incorrect. A proposition of law to the effect that if the insured in a policy covering buildings and stock in trade, failed to keep an iron safe and keep therein their books of account and inventory as required by the terms of the policy, then the whole policy became void, was incorrect, as it could not have been in the mind of either of the parties at the time of issuing the policy that the failure to keep account books or an inventory in an iron safe in the store would in any manner affect the insurance upon the building.
    7. Insurance, § 684

      —when question of waiver of requirements of fire policy is for jury. The question of waiver of requirements of fire insurance policies is one of fact for the jury.
    Appeal from the Circuit Court of Jefferson county; the Hon. Charles H. Miller, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and remanded.
    Opinion filed November 7, 1919.
    Kagy & Vandervort, for appellants; Curtis Williams. of counsel.
    Charles B. Obermeyer and Norman H. Moss, for appellee.

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

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

   Per Curiam.

The original opinion in this case was written by the late Justice McBride, and, with some slight modifications, was adopted and filed as the opinion of the court. A rehearing having been granted, the cause was reargued at the present term of court, and upon further consideration of said cause we have reached the same conclusion and adhere to our former holding and refile said opinion as the opinion of the court on the rehearing.

Reversed and remanded.

Mr. Justice McBride

delivered the opinion of the court.

It appears from the record in this case that appellants Storment and Alexander had policies of insurmice in the Hartford Fire Insurance Company for $2,000, dated September 25, 1916, $500 of which was upon the building and $1,500 upon the stock of merchandise, and that they also had policies of insurance in the Aetna Insurance Company, one for $500 on the building, dated September 21,1916, one for $1,500 upon the stock of merchandise, dated January 20, 1917, and one for $500 upon the building, dated May 11, 1917, each of said policies? being for one year. Suits were brought by appellants against the Hartford Insurance Company for the policies issued by it and against the Aetna Insurance Company for policies issued by that company. The two cases were tried together by the court,.separate judgments rendered and the court upon the trial found the issues for the defendant and rendered judgment against the plaintiffs for costs of suit, and this appeal is prosecuted to reverse such judgment.

In June, 1915, the appellants, Storment & Alexander, purchased of McCormicks Lots 13 and 14 in J. H. Crosnous Addition to the Town of Bonnie, except 75 feet off of the south end of said lots, situated in Jefferson county, Illinois, and shortly thereafter and prior to the issuing of said policies, said premises were conveyed to the appellants, Storment & Alexander. On September 25, 1916, the appellee issued to the appellants an insurance policy upon the building located upon said lots and upon the stock of goods contained therein, and the building in said policy was described as a 2-story frame building, combination roof, and its additions adjoining and connecting, now and to be occupied for general store and dwelling purposes only and situated on lot 1, block 14 in the Town of Bonnie, Illinois; and also upon the stock of dry goods, groceries, boots, shoes, hardware, produce, etc. It further appears that E. N. Dare was acting as the agent of appellee at Bonnie and wrote the description of the land upon which the building was situated without any suggestions, so far as the record discloses, from appellants or their agents. It further appears that in March, 1917, appellant Kora Alexander and her husband were desirous of going to Michigan for the purpose of seeing how they would like to live there and gave a deed to Louisa Storment conveying their interest in the property, but said deed was not recorded; and it seems by the record that there was an understanding between these people that if Alexander and his wife were not satisfied in Michigan they would come back and have their property again, but they never returned until after the fire. The fire occurred on the 14th day of May, 1917, and at the time of the fire the title of the property seems to have been in Louisa Storment. It appears that E. M. Dare, the agent of appellee, had knowledge of these several transfers and that the “appellants” consulted him at or about the time the transfers were made; that he told them that such transfers would be all right. After the fire Lewis B. Koble, adjuster for appellee, and also for the Aetna Insurance Company, came to the Town of Bonnie for the purpose of adjusting this loss, and upon his arrival ascertained that the appellants had not kept an inventory of their goods in any iron safe as required by the terms of the policy, and upon learning this fact he refused to proceed further with the adjustment until an agreement was entered into to proceed with the adjustment without prejudice to the rights of either parties.

The policy contained a clause that: “This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material ■fact or circumstances concerning this insurance, or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance, or the subject thereof, whether before or after a loss. * * * Or if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple; * * * or if any change, other than by death of an insured, take place in the interest, title or possession of the subject of insurance (except of occupants without increase of hazard) whether by legal process or judgment or by voluntary act of the insured or otherwise.” It also contained a clause by which appellants agreed to keep an inventory of their stock of goods and keep the same securely locked in a fireproof safe at night and at all times when the store was not actually open for business,’ or in some safe place not exposed to a fire which would destroy their house where said business was carried on, and an agreement to produce such books and inventory, and in case of a failure to produce the same, this policy was to be null and void, and no suit or action at law should be maintained for such loss. At the time of the effort to adjust the loss the husband and agent of appellant upon opening the safe was- unable to find the inventory but did find an inventory of a stock of goods he had at Salem, Illinois, which he stated had by mistake been put in the safe the night before instead of the inventory of the stock of goods in question. He claimed, however, that at the time the inventory was made he wrote down the amount of such inventory and gave it to his wife and that said inventory amounted to $6,817.23. This was of the store and fixtures. After the signing of said agreement, with reference to proceeding without prejudice to the rights of parties, the appellant at the request of the adjuster of appellee procured several invoices of goods that were in the store and gave some of them to him at the time and forwarded others after that. The invoices vrere never returned and suit was instituted upon the policies.

It further appears that the bank of Bonnie had a mortgage upon the premises where this building was situated for $1,300, and there was a clause inserted in the policies by the appellee providing for the payment to said bank, in case of loss, as its interest might appear.

Appellants filed a declaration counting upon the policy above set forth, to which no objections were made, and appellee thereafter filed a plea of general issue thereto and it was stipulated by the parties that any evidence that could be introduced under a proper plea should be introduced and considered by the court in the trial of these cases.

In the argument of this case the principal points considered and necessary to be determined by this court are: First. As to the effect of the misdescription of the land upon which the building was situated, and the effect of the conveyance by Alexander and his wife to Mrs. Storment, made by them after the issuance of this policy and prior to the fire. Second. The effect of appellant’s failure to keep an inventory of the stock of goods in an iron safe, as provided should be done in' the policy.

In the determination of this case it will be necessary to bear in mind that courts never look with favor upon forfeitures and will only give effect to them where there is a clear right shown. German Ins. Co. of Freeport v. Gibe, 162 Ill. 257.

It appears that E. M. Dare was the agent of appellee and as such was authorized to solicit insurance, indorse policies and deliver the same to the insured, and collect the premiums therefor. It further appears that the premises upon which the building was situated were not accurately described in the insurance policies and that Storment and Alexander were not the actual owners in fee simple of the lot upon which the policy stated that the building was situated, but the policy contained a description of the building, its uses and purpose, and the evidence showed that there was no other building of that kind or character in the village of Bonnie, and no other building occupied by Storment and Alexander as a storeroom in said town, so that-the Insurance Company could not have in fact been misled as to the building or its location. The evidence shows that the agent, E. M. Dare, prepared the description contained in the policy without any suggestion, so far as the record discloses, from the appellants or their agent, and this being true, we are of the opinion that appellee ought not be allowed to take advantage of its own mistake in the preparation and description contained in the policy. This is not an open question in this court. In the case of American Ins. Co. v. Egyptian Lodge, 128 Ill. App. 161, it was held that where the description of the property was written by the agent of the Insurance Company without direction or suggestion from the insured, that the company was not in a position to take advantage of an error in description. There is nothing in the circumstances surrounding the issuing of these policies and nothing claimed by counsel for appellee of a fraudulent nature in the destruction of the goods, and we do not believe that appellee should be allowed to escape liability upon a technical objection resulting from the mistake of its own agent.

It is also insisted by counsel for appellee that appellants were not the sole owners in fee simple of the lands upon which this building was situated at the time of the fire and for that reason they are prohibited from recovering because of the clause in the policy providing that unless they are the owners in fee simple the policy shall be null and void. It is contended that when Mr. and Mrs. Alexander conveyed all of their interest in this lot to Mrs. Storment, the ownership of the fee became vested in Mrs. Storment alone, and by reason thereof appellants are not entitled to recover. The agent, E. M. Dare, was consulted by Storment at about the time the conveyance was made, and before Alexander and his wife went to Michigan about such conveyance and he told them, in substance, that it was all right to make the conveyance, that it would not in any manner affect their rights, so that he had knowledge of these transactions, which knowledge, in law, is imputed to the company, and the company continued to carry the policies in force after such conveyance had to its knowledge been made. While the decisions of the court have not been uniform throughout the country with respect to the notice or knowledge to the agent, in this State the decisions are uniform that notice to the agent at the time of the application for insurance, of facts material to the risk, is notice to the insurer, and will prevent it from insisting upon a forfeiture for causes within the knowledge of the agent. Phoenix Ins. Co. v. Hart, 149 Ill. 513. Where a local agent gives consent to the convey-. anee of property upon which a policy of insurance has been issued, the company is estopped from denying that they assented to the sale of such property. Illinois Fire Ins. Co. v. Stanton, 57 Ill. 354. It is not expressly denied by counsel for appellee that knowledge of the agent would be binding upon the company, but he insists that it appears from the evidence that Dare was a joint owner of the bank that was carrying the mortgage upon this property and that his interest was opposed to the interest of appellee, or conflicting with it, and for that reason notice to him as agent would not be binding upon the company. We are unable to see how the fact that Dare had an interest in the bank could in any manner be construed as a circumstance making his interest antagonistic to those of the Insurance Company in this case. The rule as laid down by the Supreme Court is, that before this exception will prevail it must appear that the facts were such as would authorize the inference that the agent would conceal the information from the principal. That court has said: “To the general rule that notice to-the agent is notice to the principal there is a well-defined exception, that notice will not he imputed to the principal where the facts authorize the inference that the agent will conceal the information. That is the presumption where it would be detrimental to the ágent’s interests to disclose the facts.” Merchants’ Nat. Bank of Peoria v. Nichols & Shepard Co., 223 Ill. 53, and authorities there cited. We do not believe that Dare’s interests were such as to conflict with the duties that he owed to the company. There is, in our judgment, another reason why this transfer would not affect the rights of the parties interested in the insurance. As above stated, Mrs. Storment and Mrs. Alexander were engaged in the partnership business of selling goods, etc., and owned the building and stock of goods in copartnership, and, as we understand the rule, where one partner sells out his interest in the property to another such sale will not vitiate the policy, even though there was a condition that the policy should become void if the property be sold or conveyed. In passing upon this question the Supreme Court has said: “It is held in numerous cases that where an insurance policy is issued to a partnership, a transfer by one partner to the others of all his interest in the partnership property will not vitiate the insurance, notwithstanding a condition that the policy should become void if the property should be sold or conveyed, or the interest of the parties therein changed.” Allemania Fire Ins. Co. v. Peck, 133 Ill. 231, and authorities there cited.

It is contended by counsel for appellee, and was so held by the trial court in its propositions of law, that if the appellants failed to keep an iron safe and keep therein their books of account and inventory, as required by the terms of the policy, that then the whole policy became void. We think this view of the law is incorrect. It could not have been in the mind of either of the contracting parties at the time the policy was issued that the failure to keep proper books of account or to keep an inventory in an iron safe in the store would in any manner affect the question as to the policy upon the building. That was an entirely different subject-matter, and even though it be conceded that the failure to keep the books of account and inventory in an iron safe was a violation of the terms of the policy as to] the stock of merchandise, we do not think it could in any manner affect the insurance upon the buildings, and the holding of the propositions of law by the court to the effect that such would vitiate the whole of the policy was erroneous. In referring to questions affecting the violation of the clause with reference to a fireproof safe and keeping of the inventory and books of account therein, it is said: “A violation of this clause affects stocks of goods only; it does not affect the insurance on other items, as building, furniture or fixtures, etc. ’ ’ Clement on Fire Insurance, page 273, and authorities there cited. Claim by appellants is made that a failure to keep the books of account and inventory in an iron safe as required by the terms of the policy was waived by the conduct of the agent of the company, and they also claim that there was evidence tending to show such waiver; while upon the other hand, the appellee insists that there was nothing in the conduct of the agent of the company that in any manner tended to waive its rights under this clause of the policy. Inasmuch as this case will have to be retried, we are not disposed to give any opinion as to its sufficiency or insufficiency. The question of waiver is a question of fact to be determined by the jury under the proper instructions or holdings of the court, and when this question is submitted at another trial, proper instructions or holdings may be obtained and the jury or court will determine the facts as to waiver of appellee’s rights under this policy.

For the reasons above indicated, the judgment of the lower court is reversed and cause remanded.

Reversed and remamded.


author: Mr. Justice Carhes

text:
    Ralph C. Austin, Administrator, Appellant, v. Public Service Company of Northern Illinois, Appellee.
    Gen. No. 6,661.
    1. Death, § 71*—when questions of negligence of defendant and ordinary care of deceased are for fury. In an action to recover for a death alleged to have been caused by defendant’s negligence, it is not the province of the trial court nor of the Appellate Court to determine whether the facts shown establish a case of negligence of defendant and ordinary care by deceased, such questions being questions of fact and not of law, unless the answer is so clear that there is no ground for reasonable difference of opinion.
    2. Negligence, § 131*—what is question to be determined in negligence case. The question to be determined in a case based on negligence is whether the degree of care exercised measures up to the standard of ordinarily prudent men as they usually act under the same or similar circumstances.
    3. Trial, § 194

      —when direction of verdict for defendant is not warranted. The directing of a verdict for the defendant is not warranted merely because the court would feel bound to grant a new trial were one returned for plaintiff.

      4. Trial, § 216*—how evidence considered on motion to direct verdict. All just inferences to be drawn, from the evidence must be conceded to the plaintiff.
    5. Tbial, § 154*—drawing of inferences from facts proved as for jury. The drawing of inferences of fact from facts proved is for the jury and not for the court.
    6. Electricity, § 21*—when defense that deceased was trespasser, or mere licensee not available. An electric company which, merely by sufferance of the public authorities and without other right or claim of right, installs its wires on poles bolted to a public bridge in such a manner that after they sag they can be reached by one walking on top of the span, cannot base its defense to an action against it to recover for the death of a boy killed by grasping an uninsulated charged wire while he was walking on top of the span, which was readily accessible by reason of its angling end-beams, on the ground that the boy was. a trespasser or mere licensee to. whom it owed no duty except not to injure him wantonly.
    7. Electricity, § 28

      —when contributory negligence of deceased is for jury. In an action to recover damages for the death of a boy killed ■ by coming in contact with defendant’s uninsulated wire, charged at a point where it passed over a public bridge, evidence that such wires had been installed along the bridge merely by sufferance of the public authorities; that, while originally installed out of the reach of one on top of the spans, they had sagged until they could be easily reached; that the top of the span was, by reason of having angling end-beams, readily accessible to active persons and deceased and other boys often ran up and down the- end-beams; that deceased went up such beam to get a bird’s nest on top and, while walking on the top girder, took hold of the wire and was instantly killed, held not to show such contributory negligence on the part of deceased as to warrant the direction of a verdict, for defendant.
    Appeal from the Circuit Court of Will county; the Hon. Arthur W. DeSelm, Judge, presiding. Heard in this court at the April term, 1919.
    Reversed and remanded.
    Opinion filed July 18, 1919.
    Rehearing denied October 14, 1919.
    • Sharp, Heise & Sharp, for appellant.
    Edgar B. Elder, for appellee.

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

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

   Mr. Justice Carhes

delivered the opinión of the court.

Louis Hartel, a boy 13 years old, was electrocuted on a public bridge at Rockdale, Will county, Illinois, June-11, 1917, by coming in contact with appellee’s highly charged electric wire. This suit was brought to recover for that death. At the close of the plaintiff’s evidence the court directed a verdict for the defendant, on which judgment was entered, and the plaintiff appealed.

The evidence shows, or reasonably tends to show, the facts as follows: The bridge is about 300 feet long, all of iron except the floor, which is of wood. It consists of three spans standing 16 feet above the floor. The beams or girders on the ends and along the top are 15 or 16 inches wide. At each outer edge of the beams there is a row of rivets with protruding heads. The end-beams run up at an angle of about 45 degrees, and can be ascended easily by an active man or boy. Appellee had wires on poles bolted to the bridge within reach of a person walking along the top girder. Some, but not "all, of these wires carried high-tension currents. The high-tension wires had originally been insulated and suspended too far from the top of the bridge to be so reached. At the time of the accident, and for a considerable time before, the wires had been allowed to sag and the insulation to rot and become ineffective. There was nothing in the appearance of the high-tension wires to indicate their dangerous character, or to distinguish them from the harmless wires. There were no signs or warnings on the bridge or in the vicinity. The wires were installed and maintained by appellee by sufferance of the public authorities, and without other right or claim of right. For a considerable time before the accident they were "within easy reach of the top of the span, and contact with them meant instant death. There was much travel on the public highway and across the bridge, and for a long time many children had frequented that locality, playing thereabout; and boys were in the habit of running up and down the angling beams at the end of the bridge. Louis Hartel was there with four other boys that had been accustomed to so playing on and using the bridge. They noticed a bird’s nest at the top of the girder. He went up the incline and pulled out the nest, walked along the top of the girder about 25 feet above the floor of the bridge, reached up and took hold of a wire carrying 4,400 volts, and was instantly killed, his body dropping into the stream below.

The trial judge in directing the verdict for the defendant- assumed that this evidence presented a question of law only. It was not his province, neither is it ours, to determine whether the evidence considered together establishes a case of negligence of the defendant and ordinary care by the deceased. Whether the facts proven established neglig’ence of appellant and care of appellee are questions of fact and not of law, unless the answer is so clear that there is no ground for reasonable difference of opinion. The inquiry in negligence cases is whether a party measured up to the standard of ordinarily prudent men as they usually act under the same or similar circumstances. It is necessary to determine, first, what ivas done or omitted; second, whether ordinarily prudent men would ordinarily, under the same or similar circumstances, so act. It is familiar law and practice that the court must leave these questions to a jury, unless the answer is so plain that there is no reasonable ground for- difference of opinion. A court is not warranted in directing a verdict for the defendant merely because he would feel bound to grant a new trial wei;e one‘ returned for the plaintiff. (Libby, McNeill & Libby v. Cook, 222 Ill. 206; Bailey v. Robison, 233 Ill. 614.) All just, inferences to be drawn from the evidence must be conceded to the plaintiff. (McCune v. Reynolds, 288 Ill. 188.) The drawing of the inferences of fact from facts proved is for the jury to pass upon and not for the court to decide. (Devine v. Delano, 272 Ill. 166; Edwall v. Chicago, R. I. & P. Ry. Co., 208 Ill. App. 489.)

There is no dispute on this record as to what the defendant did and omitted. If there is ground for a fair difference of opinion whether the placing of the wires in that position and permitting them to sag and the insulation to become ineffective was actionable negligence, then the court erred in directing a verdict, even if he was of the opinion that it was not. If there is ground for a reasonable difference of opinion, the plaintiff was entitled to a verdict of the jury.

The first inquiry naturally suggested in considering whether the defendant neglected a duty is whether the boy had a right to be at that place, or was he a trespasser, or licensee? These questions are answered in Commonwealth Electric Co. v. Melville, 110 Ill. App. 242, affirmed in 210 Ill. 70. In that case electric wires of the defendant were strung under a sidewalk with access only from the vacant lot adjoining. A boy 14 years of age went under the walk and was injured by contact with a highly charged wire. The Appellate Court said that the defendant was not the owner of the premises and was only a licensee with no authority to make the premises dangerous to other licensees. The boy was not a licensee of the defendant, nor a trespasser upon its premises. The defendant knew, or ought to have known, that the place was easily accessible and liable to be visited by one having no knowledge that an electric cable was there; that if the boy was a licensee of some one other than the defendant, that did not relieve the defendant, also a licensee, of the duty to exercise care in protecting its wires, and affirmed a judgment for the plaintiff. The Supreme Court on appeal examined and decided the question whether the trial court erred in refusing to direct a verdict for the defendant, and held that while it was not the purpose of the city that the public should use the space under the sidewalk for travel, still the hoy was rightfully there, and was not there by the leave or license of the defendant, and therefore was not subject to the rules applicable to one who goes upon the property of another with or without permission; that while it may be conceded that he had no right to take hold of the wire, the question still remained who was responsible for the injury resulting from his accidental contact with it, cited authorities that care commensurate with the danger must be exercised by those who make ^ business of using electricity for profit, and held that the evidence tended to show negligence of the defendant, and therefore presented a question for the jury; also, that the question of contributory negligence of the plaintiff was one for the jury, and affirmed the judgment. That decision, applied here, means that there is no ground for a defense that the boy was a trespasser, or mere licensee, whom the defendant owed no duty except not to wantonly injure him. It is also clear there Is no ground for the contention that this case falls within that class where the facts are undisputed, leaving nothing but a question of law for the court to decide.

It is not much contended, and there is no ground for a claim, that the evidence so clearly showed contributory negligence of the boy as to warrant the directing of the verdict. The main contention is that the evidence entirely fails to show actionable negligence of the defendant. Commonwealth Electric Co. v. Melville, supra, if it stood alone, could fairly be urged as a controlling authority that the question of fact should have been submitted to the jury. There are numerous other authorities cited by counsel in which the plaintiff was killed or injured by coming in contact with electric wires and appliances of the defendant. No two cases present precisely the same condition of. facts. But counsel for appellant have been able to find several in our Appellate Courts and in the courts of other States where under quite similar facts the defendant has been held guilty of negligence, and the plaintiff not guilty of contributory negligence. And counsel for appellee has also found a number of cases other than our own Supreme Court decisions where under similar circumstances the conclusion has been reached that the defendant was not guilty of negligence, or the plaintiff was not in the exercise of due care, and recovery denied. It is not claimed that there is any decision of our Supremo Court in conflict with what was said and held in Commonwealth Electric Co. v. Melville, supra. It would unduly extend this opinion to discuss those conflicting opinions. When the numerous cases are considered together it becomes clear that there is at least ground for a fair and intelligent difference of opinion whether the defendant in the present case should be held guilty of actionable negligence under the admitted facts. That question must first be passed on by a jury; therefore, the court erred in directing’ a verdict for the defendant, and the judgment is reversed and the cause remanded for further proceedings not inconsistent with the views here expressed.

Reversed and remanded.


author: Mr. Justice Dibell

text:
    Lois J. Emmitt, Appellee, v. Frank A. Carlson, Appellant.
    Gen. No. 6,687.
    1. Evidence, § 345*—when parol evidence of collateral agreement is admissible. The fact that the parties to a sale of land have entered into a valid written contract for the sale of the land does not prevent the vendor, in action hy her against the purchaser to recover commissions on such sale which had been recovered from her by a third person, from introducing parol evidence to show a collateral agreement between her and the purchaser by which the latter agreed that if she would allow him the amount of the commissions she had agreed to pay a third person, he would protect her in case she should be required to pay commissions to the third person whose agent, it appeared, had approached the purchaser in regard to the farm before the sale was made.
    2. Indemnity, § 24*—when evidence in action on contract sufficient to sustain verdict for plaintiff. In an fiction by the vendor of land against the purchaser to recover commissions on tfye sale which had been recovered of the vendor by a third person, the vendor’s action being based on an alleged agreement on the part of the purchaser that if she would allow him a credit of the amount of commissions which she had agreed to pay the third person, he would protect her in case she was held liable to such third person, where the purchaser contends that the effect of such agreement was merely to bind him to testify for her in any suit which such third person might bring against her, but the vendor introduces evidence to show that the purchaser stated that he would see that she did not lose anything by allowing him the commission and that if she had to pay it, he would pay it to her, a verdict for plaintiff will not be, disturbed.
    3. NEW trial, § 86

      —when point for new trial waived. One who moves for a new trial and files points in writing waives a point not contained in such written points.
    Appeal from the City Court of Sterling; the Hon. Carl E. Sheldon, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed July 18, 1919.
    Rehearing denied and opinion modified October 14, 1919.
    Boyce A. Kidder and Jacob Cantlin, for appellant.

      Henry C. Ward, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

Lois J. Emmitt sued Frank A. Carlson in assumpsit in the City Court of Sterling to recover certain items set out in a bill of particulars. She had a verdict and a judgment for the full amount of her claim with interest, and Carlson appeals.

Appellee owned a farm and placed it for sale with one Burnley for a commission of $2 per acre. Carlson came to her and offered to buy the farm and they agreed on a price. He learned from her that she had agreed to pay Burnley a commission and insisted that, as Burnley had not earned any commission and appellant had done the selling to himself, he should be allownd a credit for the commission. It was immaterial to Mrs. Emmitt whether she paid the commissions to Burnley or allowed them to Carlson, but an agent of Burnley’s had spoken to Carlson about the farm and she feared that she would be compelled to pay commissions to Burnley. Carlson promised her that he would protect her in case she was held liable to Burnley and she thereupon gave Carlson the credit and sold him the farm. Afterwards Burnley demanded his commissions and, they not being paid, he sued Mrs. Emmitt therefor. Carlson knew of this for he was a witness at that trial. Bumlev recovered and Mrs. Emmitt paid the judgment, the costs, attorney’s fees and some traveling expenses. She brought this suit against Carlson for those items and recovered in full.

Appellant contends that, as the contract for the sale of the land by appellee to himself was in writing and this matter was not stated therein, the action cannot be maintained, because a complete, valid, written contract merges all prior and contemporaneous negotiations and agreements within its purview. Such is the geiieral rule, but there are exceptions thereto. One of them is thus stated in 2 Elliott on Contracts, sec. 1634: “There is also a class of cases in which it is held that parol evidence of a collateral contemporaneous agreement, which assumes the contract as indicated by the writing, and undertakes to deal with some contingency or new relation of the parties in the future that may arise under the written agreement, is - admissible.” This exception is supported by authorities there cited, one of which is Batterman v. Pierce, 3 Hill (N. Y.) 171. This exception applies to the present case. The written contract stated all that was to be paid for the land and was a complete expression of their contract on that subject, but there was a possible future contingency. Burnley might contend that though he did not negotiate the trade, yet he had brought the farm to the attention of appellant through an agent whom he had sent to him, and that he had thereby become entitled to the commission, and he might sue for it and might recover. On the other hand, he might not claim it, or he might fail if he did. This was a contingency in the future which might or might not occur.' Parol evidence of that collateral agreement was therefore admissible.

Appellant contends that, if such is the law, the language used by appellant in mailing that arrangement did not make him liable to pay any portion of the sum demanded, but only bound him to testify for her in any suit Burnley might bring against her. This contention is based upon consideration of only one piece of evidence against him. There was evidence that he said to appellee that he would stand back of her, but also that lie would see that she did not lose anything by allowing him the commission, and also that if appellee had to pay a commission, he would pay it to her. If the jury believed the evidence introduced by appellee, she was entitled to recover from appellant. Appellant gave a different version of the transaction and it was the function of the jury to determine which version to believe, and the jury believed the evidence introduced by appellee, and the evidence would not warrant us in disturbing that conclusion or in holding that another jury would be likely to decide the question differently.

Appellant contends that certain items of appellee’s claim were in any event not sufficiently established by a preponderance of the evidence, and that the verdict and the judgment are therefore excessive. In Yarber v. Chicago & A. Ry. Co., 235 Ill. 589, upon a full discussion of prior decisions, it was held that “if a motion is made for a new trial and the grounds thereof are stated in writing, the party is limited to those reasons and all other errors are deemed to have been waived.” We applied this rule in People v. Strauch, 153 Ill. App. 544, on p. 554. Appellant moved for a new trial and filed points in writing. He did not therein contend that the verdict was excessive. He thereby waived that point, and cannot avail of it here by assignments of error which do not raise it.

Complaint is made of the giving of an instruction. That point was not made in the written motion for a new trial. The instruction is not set out in the abstract. The point is therefore waived.

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

Affirmed.


author: Mr. Presiding Justice Niehaus

text:
    Katherine Weidknecht, Executrix, Appellee, v. Patrick H. Clark, Appellant.
    Gen. No. 6,671.
    1. Landlord and tenant, § 55*—when lease under seal cannot he modified hy parol understanding as to rent. In an action to recover rent due under the provisions of.a lease under seal, the covenant to pay rent and the amount of rent which the lessee is required to pay hy the terms thereof cannot he modified or varied by proof of a parol understanding between the parties, nor can the terms of such lease be changed by showing an expressed intention on the part of the lessor not to enforce the covenant to pay rent.
    2. Landlord and tenant, § 318*—what not in issue in action for breach of covenant to pay rent. The fact that a lease of land for mining sand provides for a rental of 3 cents a ton, payable monthly, does not require that, in an action to recover the rent claimed to be due under the lease, the plaintiff prove that there was sand mined under the terms of the lease, how much had become due therefor and how much had been paid, where plaintiff’s declaration is not predicated on the amount due for mining1 sand but upon a breach of the covenant contained in the lease fixing a certain amount as the minimum monthly rental, regardless of the amount of sand mined.
    3. Covenant, Action of, § 7*—what not denied and what not set up hy plea of non est factum. As a rule, the plea of non est factum merely puts in issue the execution of the written instrument involved, and, in an action of covenant, does not deny the alleged breaches nor set up any other matter of defense.
    4. Landlord and tenant, § 325

      —sufficiency of evidence as to amount due. Where, in an action of covenant to recover the amount of rent alleged to be due under a lease, defendant pleads non est factum and special pleas, the other material allegations being admitted, and no evidence is offered under the plea of non est factum and there is no proof of the matters alleged in the special pleas, the jury are properly instructed to find for plaintiff the amount appearing to be due under the prima facie case made hy the introduction of the lease in evidence.
    Appeal from the Circuit Court of La Salle county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 14, 1919.

      Kelly & Kelly, for appellant.
    Lester H. Strawn, for appellee.

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

William Weidknecht, in his lifetime, brought this action of covenant in the Circuit Court of La Salle county to recover from appellant, Patrick H. Clark, the amount of rent alleged to be due under the provisions of a lease between the parties, dated June 1, 1912. The declaration charges that the lessor, William Weidknecht, made the lease in question to the appellant for certain land belonging to Weidknecht, and for the mining of sand for a term of 10 years, commencing August 1, 1912. By the terms of the lease the rental to be paid for the mining of the sand was 3 cents per ton and monthly payments were to be made therefor to the lessor; and if the payment for any month at the rate aforesaid, together with previous payments made, should not amount to $60 per month, then the appellant was obligated to make payment of an additional amount, so as to make the amount of rent paid $60.00 per month; and that on May 20, 1916, there was due under the terms of the lease from the appellant the sum of $2,700, which was unpaid. The appellant pleaded non est factum to the declaration, and four special pleas. The defense alleged in the first special plea is that, after the making of the lease in question, and before the commencement of the suit, the lessor had for good and valuable consideration annulled, canceled and declared void said lease, and released the appellant from the several covenants and agreements contained therein. In the second special plea the defense alleged is that, by agreement between the lessor and the lessee, the terms and provisions of the lease were to be subject to the action of the lessee in securing certain railroad rates and transportation charges, and certain facilities for mining and removing sand from the leased premises; and that the lessor expressly agreed with the lessee that, notwithstanding the terms and provisions of said lease, the lessor woidd not demand or seek to recover from the lessee rental or royalty mentioned in the lease until the lessee had commenced shipping sand; that it was well known to the lessor at the time the lease was made that before the lessee could mine sand he would have to secure rates and facilities for the hauling of sand from' the leased premises- by rail, and that the lessor agreed not to charge the lessee any amount as rental or royalty until the same were secured; and that the lessee under said promise expended $400 and his time in securing switching rates and switching connections; and that by reason of such action and conduct said lease was canceled, annulled and declared for naught. The third special plea is substantially like the second, though couched in somewhat different language. The fourth special plea alleges that after the execution of said lease, and before any money became due, the lessor and lessee entered into an agreement whereby the defendant was to secure switching and switching rates so that the lessee might place his sand upon the market; and that as a consideration the lessor agreed to cancel and annul the lease in question, and to discharge the appellant from any liability thereunder; and that the lessor did then and there cancel said writing and lease, and that the appellant pursuant to said agreement did secure connections and rates and that the lessor as a further consideration for his action in that regard agreed to execute a new lease for a period of 10 years at 3 cents per ton for all sand mined, and that said lessor, although requested to execute said lease, refused to do so, and thereby the lessee was damaged to the amount of $5,000.

After the commencement of the suit, William Weld- ' knecht, deceased, and the appellee, Katherine Weidknecht, as executrix, was substituted as a party plaintiff. There was a trial by jury, the court excluded the testimony of the witnesses A. E. Blackburn and William Hawthorne which embodied appellant’s defense, and at the close of all the evidence directed a verdict for appellee for the sum of $2,700, the amount which appeared to be due under the averments of the declaration and the covenants of the lease, and a judgment for that amount was rendered against the appellant, who prosecutes this appeal.

The appellant contends that the judgment should be reversed for certain specific reasons, namely:

“First: That the $60 a month proposition only applied after sand had been mined.

“Second: That the $60 a month proposition had been waived in consideration of Clark obtaining switching connections and rates.

“Third: That this whole lease had been given up, rescinded, canceled and surrendered with the promise to make a new lease later.

“Fourth: That plaintiff made out no case without showing that there was no sand mined, or, if mined, the amount, etc., at 3 cents per ton.

“Fifth: That the court erred in excluding the evidence of Blackburn and Hawthorne showing a cancellation, waiver and rescinding of the whole lease and an agreement to make a new one.

1 ‘ Sixth: After excluding the evidence of defendant, the court erred in rendering judgment without proof in the record that no sand was mined or, if sand was mined, the amount at 3 cents per ton.”

The questions thus presented for the consideration of the court are practically all involved in the main contention in the case relating to the exclusion of. the evidence of the witnesses Blackburn and Hawthorne. The evidence given by these witnesses did not show that the lease in question had been actually canceled or surrendered, but merely tended to show a verbal agreement or understanding that the lessor would not collect the rent provided for in the lease until the lessee had succeeded in arranging for certain switch connections and transportation rates for the removal of the sand mined on the premises; and that the lessor intended to make a new lease to the lessee, but had in fact never made such a new lease. We are-of opinion that the court did not err in excluding the evidence of these witnesses. The lease in question was an instrument under seal; the covenant to pay rent and the amount of rent which the appellant was required to pay by its terms could not be modified or varied by proof of a parole understanding between the parties; nor could the terms of the lease be changed by showing an expressed intention on the part of the lessor not to enforce the covenant to pay the rent. Baker v. Whiteside, Breese 174; Chapman v. McGrew, 20 Ill. 101; Hume Bros. v. Taylor, 63 Ill. 43; Barnett v. Barnes, 73 Ill. 217; Loach v. Farnum, 90 Ill. 368; Leavitt v. Stern, 159 Ill. 526. The case of Leavitt v. Stern, supra, is a complete answer to practically all the contentions of the appellant concerning the legal effect of the alleged new agreement or understanding for the nonpayment of rent and the making of a new lease. In that case a recovery was sought for rent claimed to be due under a lease for theater premises in the City of Chicago. The lessee offered to prove that after the making of the lease under which the suit was brought the lessor had entered into an oral contract with him whereby the lessor was to give him a new lease of the premises for the period of 6 years thereafter, and the old lease was to be canceled, and that the lessee was to hold under the new lease from the date of that agreement. Furthermore, that the lessor had actually drawn the new lease, although it had never been delivered to the lessee. The lessee also offered to prove a certain conversation between himself and the lessor in the presence of another witness, in which conversation it was agreed that the lease under which the parties were then in possession of the theater premises should be void, and that the lessee should remain in possession of the premises and that he should pay rent under a new lease, which was to he executed as of July 1, 1893, following, and that new lease was then and there exhibited to the lessee by the lessor in the presence of the other witness and contained different terms with reference to the amount of rent to be paid for the 5 remaining years of the then existing lease; and that on the strength of the new lease which the lessor had made out and was to deliver to the lessee, the lessee had expended large sums of money in the improvement and furnishings of the theater and for decorating the same, and for putting in electric fans, new chairs, carpets, etc. The court excluded this testimony as not constituting a legal defense to the recovery of the rent under the existing lease, and the Supreme Court held that the testimony was properly excluded, and in that connection makes the following comments: “The testimony as offered did not prove any actual cancellation or surrender, but only an oral agreement that the new lease should take the place of the old. It follows, therefore, that the proposed testimony was incompetent to prove a termination, cancellation or surrender of the lease. * * * The testimony, therefore, offered by the plaintiff, which tended to prove a breach of the oral contract for a 6-year lease, and that the defendant had sustained damages by reason of such breach, was inadmissible.” Appellant also insists that the introduction of the lease in evidence did not make out a prima facie ease for the appellee under the pleadings, but that it was necessary for him to make proof that there was sand mined under the terms of the lease, and how much had become due therefor, and what, if anything, had been paid on that account. It will be noticed, however, that the averments in the declaration are not for the recovery of any amount due for the mining of sand, but are predicated upon a breach of the covenant which fixed $60 per month as the minimum amount of rent to be paid for each and every month during the term of the lease regardless of the amount of the sand mined; and the declaration alleges that under this covenant there was $2,700 duo and unpaid, and in arrear. As a rule, the plea of non est factum put in issue merely the execution of the lease or written instrument involved in the suit. Such a plea in an action of covenant does not deny the alleged breaches of covenant, nor set up any other matter of defense. Goldstein v. Reynolds, 190 Ill. 124. All other material allegations in the declaration were admitted. Puterbaugh’s Common Law Pleading and Practice (9th Ed.) 349. The admission of the lease in evidence was therefore sufficient to make prima facie case for appellee. There was no evidence offered under the plea of non est factum, and there was no proof of the matters alleged in appellant’s special pleas. The court therefore properly instructed the jury at the close of all the evidence to find a verdict for the amount which appeared to be due under the prima facie case made by the appellee, to wihich no legal defense had been proven. The record does not disclose any error, and judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Carnes

text:
    In the Matter of the Estate of Lyman W. Hayhurst, Deceased. John B. Hayhurst and Jerome A. Hayhurst, Appellants, v. Clara Jones, Appellee.
    Gen. No. 6,664.
    1. Just, § 10*—right to jury trial in proceedings to probate will. In proceedings to probate a will, neither the proponents of the will nor those opposed are entitled to a trial by jury.
    2. Appeal and ebbob, § 1387*—how evidence on appeal from probate of will reviewed. On appeal from a judgment admitting a will to probate, the evidence” presented to the lower court by which the case was heard is reviewed, not with reference to the question of errors in admitting or excluding it, but to ascertain whether there is sufficient legal, competent evidence to sustain the judgment.
    3. Wills, § 137*—necessity of producing subscribing witnesses. The proponents of a will are bound to produce the subscribing witnesses.
    4. Wills, § 143*—what evidence is sufficient to establish will. On proceedings to probate a will, where the subscribing witnesses are called, their proven signatures are introduced and their signatures to the attesting clause are proven by comparison; the testator’s signature is proven by other than the subscribing witnesses; he is shown to have been of sound mind and disposing capacity at, before and after the date of the will; circumstances are proved showing that the disposition of the property was the one which reasonable people would expect him to make, and declarations by the testator that he had disposed of his property in such manner are shown, such evidence is sufficient to establish the will.
    5. Wills, § 143

      —when finding as to genuineness of signatures of subscribing witnesses will not be disturbed. On appeal from a judgment in probate proceedings to establish a will, where the evidence is conflicting as to the genuineness of the signatures of the subscribing witnesses, the latter denying such signatures and that they were present when the will was executed, and evidence of experts and by comparison of handwriting showing the genuineness of such signatures, and there being further evidence to show that the will was that of the testator, and no evidence to support a motive for forgery being introduced, the finding of the lower court in favor of the genuineness of their signatures will not be disturbed.

      6. Wills, § 156*—what evidence admissible in Circuit Court, to prove execution of will. While the fact that the persons whose names appear as subscribing witnesses to a will, executed and attested in compliance with law, deny the genuineness of their signatures may prevent proof by their evidence of the execution of the will and prevent its probate in the County Court, such fact does not prevent such proof being made by other competent evidence on appeal to the Circuit Court.
    7. Signatures, § 3*—when proof by comparison permitted. The rule which formerly existed under which the genuineness of a signature could not be proven by comparison unless the standards had been in evidence for some other legitimate purpose or at least among the files of the case as a part of the record, has been changed by the act of 1915 [L. 1915, p. 440, Call. 1916 Stat. 1f 5566(1) et see?.] which permits comparison with writings admitted to be genuine by the parties or proven to be genuine to the court’s satisfaction.
    8. Appeal and erbob, § 1466*—when admission ofx evidence to prove handwriting is not reversible error. The fact that no notice or opportunity for examination of the introduction in evidence of standards for the comparison of handwriting was given as provided by the act of 1915 [L. 1915, p. 440, Call. 1916 Stat. If 5566(1) et see?.] is not ground for reversal where the standards were identified in the first part of the trial but were not offered until later, no objection on the ground of want of notice and request for examination was made, and it was apparent that the genuineness of the signatures could not be disputed.
    9. Appeal and error, § 1466*—when admission of evidence to prove genuineness of signature is not reversible error. Though, in a proceeding to probate a will, it is not proper to admit in evidence photographs of signatures used by witnesses who testified they had examined the originals and the photographs and testified from the examination, where there is no proof of their genuineness, the proceeding having been heard by the court, the admission of such evidence is not material.
    10. Wills, § 159*—who bound by judgment of Circuit Court on appeal from refusal of probate. Where several persons opposed the probate of a will in the County Court and the record on appeal to the Appellate Court shows that an appeal was taken to the Circuit Court from the judgment refusing probate and the “contestants” appeared there, without naming them, all those opposing probate below were bound by the judgment of the Circuit Court, including one who did not actively appear in the latter court.
    11. Appeal and error, § 1035

      —when question of costs not reviewed. Where, on. appeal from a judgment of the Circuit Court admittíng a will to probate, the only assignment of errors is that the court erred in finding the will to be the last will and testament of the decedent, appellants cannot complain of the disposition of costs below.
    Appeal from the Circuit Court of Kankakee county; the Hon. Anthub W. DeSelm, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 14, 1919.
    E. P. Harney and H. H. Wheeler, for appellants.
    John E. Higgins, for appellee; Charles H. Bryce, of counsel.

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

Lyman W. Hayhurst, unmarried, a resident of Kankakee county, Illinois, died there November 18, 1916, leaving surviving as his only heirs at law two sisters, Nancy E. Lyons and Clara Jones, and three brothers, John B., Jerome A. and Edward L. Hayhurst, all adults. He left an instrument purporting to be his last will and testament, regular on its face, executed July 10, 1907, and witnessed by Theo. E. Hamilton and Roy Conrad, who were at that date near neighbors of his sister, Nancy E. Lyons, with whom he lived. The attesting clause reads as follows:

“The above instrument, consisting of two sheets, was now here subscribed by Lyman W. Hayhurst, the testator, in the presence of each of us; and was at the same time declared by him to be his last Will and Testament, and we, at his request, signed our names thereto in his presence as attesting witnesses.

Theo. E. Hamilton, of Sherbumville Roy Conrad, of Sherbumville.”

Excepting names and dates it is literally the same as that under consideration in Hutchison v. Kelly, 276 Ill. 438, omitting in its recitals any mention of the testator’s mental capacity. The will named the two sisters, Nancy E. Lyons and Clara Jones, as sole beneficiaries and executors. Nancy E. Lyons presented this instrument with a petition for probate in the County Court, averring in the petition that the decedent died seized of personal property estimated to be worth $1,900. In the absence of anything in the record to the contrary, we assume he left only personal property.

The subscribing witnesses appeared, each denied his signature to the attesting clause, probate was refused, and an appeal taken to the Circuit Court by Clara Jones. The case was there heard by the court, as provided in section 13 of our act on wills (J. & A. 11554), which permits the party seeking probate to introduce any evidence competent to establish a will in chancery. (Kaul v. Lyman, 259 Ill. 30.) Probate was there allowed, and this appeal from that judgment is prosecuted by Jerome A. and John B. Hayhurst.

Appellants argue that there was error in admitting improper testimony, but their abstract of the record does not show that the court ruled, or was asked to rule, on the competency of any evidence offered. Appellants offered no testimony, therefore there is no question of excluding* evidence. Neither party was entitled to a trial by jury. (Schofield v. Thomas, 236 Ill. 417, 421.) And even were we to examine the record to find objections to the rulings of the court in admitting evidence, still the only question on the proofs would be whether there is sufficient legal competent evidence to sustain the judgment. (Goelz v. Goelz, 157 Ill. 33; Coffey v. Coffey, 74 Ill. App. 241.)

It appears from the bill of exceptions that the “proponents” and “defendants” each appeared by counsel. The proponents were bound to produce the subscribing witnesses. (Thompson v. Owen, 174 Ill. 229; In re Simon’s Will, 266 Ill. 304.) They called each of them and identified by him his signature and handwriting on several papers to be used as standards of comparison of handwriting. Conrad also in the presence of the court wrote his name and one or more sentences. Then proponents called several experts on handwriting. Hamilton’s signature to the attesting clause was fully identified, not only by comparison with his signature so proven, but also by witnesses theretofore acquainted with his handwriting. Conrad’s signature was identified by comparison with' his proven signature on the papers introduced as standards of comparison. The signature of the testator was proven by witnesses other than Hamilton and Conrad.; also that he was of sound mind and disposing capacity at and before and after the date of the will.

It further appeared that the testator made his home with his sister, Mrs. Lyons'; that at the date of the will there was a Hayhurst family quarrel with a suit pending in court, in which the three brothers were antagonistic to the testator and his two sisters; that the family differences existed thereafter to some extent during the testator’s life, and he had relied upon one or both of his sisters for a home and aid in sickness. In short, that it Was such a disposition of his property as reasonable people knowing the circumstances would presume he would desire. A lawyer who had acted for testator in the lawsuit testified that shortly after the date of the will he left it with him to keep, telling him what it was, and that he did keep it until after his death. Other declarations of the testator were shown to the effect that he had made a will giving all his property to his two sisters. Sufficient evidence was introduced to establish the will under the authority of Thompson v. Owen, supra; Mead v. Trustees of Presbyterian Church, 229 Ill. 526; Elston v. Montgomery, 242 Ill. 348; Flynn v. Flynn, 283 Ill. 206. But the proponents again called the subscribing witnesses, Hamilton and Conrad, and examined each of them, and each denied his signature to the attesting clause, and each denied that he was present when the will was executed. Their testimony is not clear; they were confused and mistaken in their recollection of events occurring about that time, and probably to some extent in sympathy with the brothers in the family fend. Assuming the competency of the expert testimony on handwriting, which we will notice hereafter, it was a question of fact for the court to determine by weighing the conflicting testimony whether the signatures of Hamilton and Conrad to the attesting clause were genuine. We believe they were. It may be they were testifying on the theory that if they could not remember the transaction it never occurred. There is nothing in the record to suggest a motive for any one to forge those signatures. It is extremely improbable that it was done. The court not only saw the witnesses and heard them testify, but he saw Conrad Write; saw the signatures of Conrad and Hamilton that they each admitted in his presence were genuine. These writings have not been certified to this court. The presumption is that they supported the finding of the trial court. We think it shown by the preponderance of the evidence that the attesting clause was signed by those witnesses.

We know of no Illinois reported case where the attesting witnesses denied their signatures, but there are several where they admitted the signatures and denied all recollection of the event. The authorities are reviewed in Thompson v. Owen, supra, followed in Flynn v. Flynn, supra, with citation of later Illinois cases, among them Elston v. Montgomery, supra, where, as in the present case, the attesting clause omitted all mention of testamentary capacity; and More v. More, 211 Ill. 268, where there was no attesting clause written out, and proof of the genuineness of the attesting witnesses’ signatures was held to raise the presumption that the will was duly attested, and create an inference that the witnesses believed the testator possessed testamentary capacity at the time of the execution of the will. Mead v. Trustees of Presbyterian Church, supra, is another ease where there was no attesting clause. Proof was there made by other than the attesting witnesses that the testator was of sound mind and memory, and of the genuineness of his signature. The court noted that the case differed from those where there was an attesting clause reciting all the necessary facts, but said a formal attesting clause was not necessary, and that evidence found in the record clearly supplied the presumption arising from the presence of such a clause. Those cases read together mean that when signatures to the attesting clause are admitted or proven, they are prima facie evidence of the essential recitals there found, but in the absence of an attesting clause, or of such recitals therein, the necessary facts may be shown by other competent evidence; and while our courts heretofore have not dealt with a case precisely like this where the attesting witnesses deny their signatures, still they have repeatedly in the cases before cited indorsed holdings of other courts that the probate of a will does not depend upon the recollection or even the veracity of a subscribing witness. If a will is executed and attested in compliance with the statute, the death, forgetfulness or fraud of one or both of the attesting witnesses may prevent proof by their evidence of the execution of the will, and sometimes prevent its probate in the County Court, but on appeal to the Circuit Court such proof can be made by other competent evidence.

Appellants insist that the signature of the subscribing witnesses could not be proven by comparison with the documents introduced and used for that purpose. Before the- act of .1915 such papers must have been in evidence for some other legitimate purpose, or at least among the files of the ease as a part of the record. (Green v. Jennings, 184 Ill. App. 340, 346, citing Illinois cases.) That rule is stated and discussed in Stitzel v. Miller, 250 Ill. 72, 77. The act of 1915 (Session I jaws of 1915, page 440) broadens the rule and permits comparisons with writings admitted to be genuine by the parties against whom the evidence is offered, or proved to be genuine to the satisfaction of the court. The writings used here were proven beyond question to be genuine, but the statute further provides that before such standard shall be admitted in evidence for comparison such notice thereof as under all the circumstances of the case is reasonable shall first be given the opposite party, or his attorney, and a reasonable opportunity to examine such proposed standard shall, on motion duly made, be accorded the opposite party, his attorney and witnesses, prior to the introduction in evidence of such standard. Appellant's complaint is that there was no notice of the intended introduction of those standards. They were identified in the first part of the trial and not offered until some time later. There was no objection or suggestion then of want of notice, and no motion or request that time be given to examine the papers. It was evident that the ‘ genuineness of the writing could not be disputed, and if appellants had desired time to examine them and compare them with the signatures to the attesting clause of the will, or procure witnesses to testify after such comparison, they should have asked it. They cannot now be heard to complain that the court did not, of his own motion, give them further time to examine those papers when their conduct on the trial indicated they had no such desire.

In the course of the trial some photographs of signatures were used by the witnesses who said they had examined the originals and the photographs, and testified from such examination. These photographs were admitted in evidence. Appellants say there was no proof of their genuineness, and therefore they were not competent evidence, which we think is true. But it was a hearing before the court where the admission of incompetent evidence did not much matter. The photographs were used in much the same way that a microscope might have been with witnesses testifying that they had examined the original signature, and examined it magnified by the glass. The court could have used the glass himself, and he very likely looked at these photographs. It would matter little whether the record showed the glass admitted in evidence or not.

One of the brothers, Edward L. Hayhurst, is said by appellants not to have appeared in the Circuit Court. Judgment was there entered against him with the other two brothers for costs. The record' shows that the ‘ contestants ’ ’ appeared in the Circuit Court, without naming them. Edward was in court and bound by that judgment whether he actively appeared or not. John B. and Jerome A. only assign errors here. They were not harmed by including Edward in the judgment for costs, and the only complaint as to the judgment in their assignment of errors is that the court erred in finding the will to be the last will and testament of Lyman W. Hayhurst, deceased; therefore there is no question presented here as to the disposition of costs. Finding no error in the record, the judgment is affirmed.

Affirmed.


text:
    Harry Gilberts, Appellee, v. Rockford & Interurban Railway Company, Appellant.
    Gen. No. 6,668.
    1. Cashiers, § 425*—when passenger’s ailomng body to protrude from car not contributory negligence as matter of law. A passenger allowing a part of his body to protrude from the car is not guilty of contributory negligence as a matter of law barring a recovery for injuries that would have been avoided had he kept entirely within the car.
    2. Carriers, § 480*—when contributory negligence of injured passenger is question for jury. The question whether a passenger was guilty of negligence in allowing a part of his arm to protrude from the car window is one of fact to be passed upon by the jury unless there is no evidence tending to show that he was in the exercise of due care and caution and no fact or circumstance appears from which a reasonable inference of such care and caution may be drawn.
    3. Carriers^ § 480*—when contributory negligence of injured passenger is question for jury. Where the seats in a car are so arranged with reference to the guardrails in the open car windows that a passenger’s arm would be guarded against projecting outside of the window when placed on the sill, but might readily project outside without the passenger’s noticing it when placed on the back of his seat or the one in front of him, and it appears that plaintiff’s injury was received when he placed his hand on the seat before him and while it was protruding from 2 to 4 inches, he testifies that he was unconscious that his elbow, which was struck, was projecting, the question of his negligence is for the jury.
    4. Carriers, § 407*—what conditions passenger is chargeable with Knowledge of. One who, as a passenger, rides frequently over a certain part of an interurban road is charged with such knowledge of the conditions as an ordinarily prudent man would acquire in so riding.
    5. Carriers, § 480

      —when negligence in manner of constructing tracks, etc., is question for jury. In an action by a passenger on defendant’s car to recover for injuries to his arm which was struck by another passing car while it was protruding from 2 to 4 inches out of the window, the question of defendant’s negligence in the manner in which the tracks were constructed and its road was operated doqs not raise a scientific question requiring expert evidence, but is one to be determined by the jury guided by their common knowledge of human affairs.
    6. Cabbiebs, § 356*—when carrier required to guard openings in cars and warn passengers of danger. Where the proximity of a carrier’s tracks is such as to leave a clearance of only 2 to 4 inches between passing cars and such condition has existed a considerable time, it is the carrier’s duty to effectually guard openings in its cars and to warn its passengers of the danger.
    7. Cabbiebs, § 278*—what is degree of care owing try carrier to passenger. A carrier of passengers owes to a passenger the duty of exercising the highest degree of care consistent with the character and mode of conveyance and the practical operation of its conveyance to prevent an accident.
    8. Cabbiebs, § 476*—when evidence sufficient to warrant finding that carrier was negligent in failing to guard and warn passenger against danger. In an action by a passenger to recover for personal injuries received by his arm being struck, while protruding from the car window, by a car of defendant passing on a parallel track, where it appears that the clearance between the cars at that part of the track was from 2 to 4 inches, that there were four guardrails in the windows extending up the window about a foot, that the top guardrail was a little below the level of the back of the car seat and that at the time the injury was received, the plaintiff had his hand on the top of the seat in front and turned to speak to someone leaving the car, and, in so doing, unconsciously caused a part of his elbow to protrude slightly beyond the top rail whereupon he was struck by the other car, it was held that such evidence warranted a finding that the defendant was guilty of negligence in failing to guard the passenger against or warn him of the danger of such an injury.
    9. Cabbiebs, §§ 484, 493

      —when instruction as to care required of passenger and carrier not so misleading as to Be ground for reversal. An instruction, in an action by a passenger to recover for personal injuries, as to the care required of passenger and carrier, while not approved as to form nor sanctioned as a precedent but open to criticism in many respects, held not so misleading as to be ground for reversal.
    Appeal from the Circuit Court of Winnebago county; the Hon. Claibe C. Edwabds, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 14, 1919.
    Rehearing denied November 21, 1919.

      Certiorari denied by Supreme Court (making opinion final).

      Fisher, North, Welsh & Linscott, for appellant.
    Shelby L. Large and William L. Pierce, for appellee.

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

Harry Gilberts, the appellee, was a passenger on an interurban car operated by the appellant railway company from Belvidere to Rockford, Hlinois. It was very hot weather in August. The window adjacent to appellee’s seat was raised, but there were four guardrails made of half or three-quarter inch round iron about 3 inches apart in the lower part of the opening. The window was 3 feet and 5 inches high, and 2 feet and 2 inches wide. The top guardrail was a foot above the sill leaving 2 feet and 5 inches of window space above the top rail. The back of the seat was a little higher than the top rail. The window was shoved up as far as it would go, leaving an opening above the top rail about 14 by 26 inches. One’s. arm would easily pass through it, and might readily «do so if resting on the back of the seat. After reaching the City of Rockford there was a double track for a considerable distance on which cars passed. They met a car so passing at a place where the distance between the window guards and projections of the other car was, according to appellant’s deductions from the measurements, 4 inches; and according to appellee it was, because of a depression in the track, about 2 inches. Appellee and another passenger occupied the same seat, appellee sitting next the window, his hand resting on the sill. The other man got up to leave the car at this point. Appellee partly turned to speak to him, placing his hand on the back of the seat ahead in such a way that the elbow projected through the window opening. The seats were small, only a little over 2 feet from the hack of the seat on which he was sitting to the back of the next front seat. He was unconscious that his elbow was beyond the guardrail, and testified that he did not think it could have been more than 2 inches. Appellant’s testimony indicates that it was farther, but there is no doubt that his hand was inside the car, his elbow only outside; and if it projected more than 2 inches it was in danger. It was hit and injured by the passing car. He brought this action to recover for the injury, and had a judgment on a verdict of $2,500. The company prosecutes this appeal.

The main contention is that appellee was guilty of contributory negligence. It is insisted as matter of law that a passenger allowing a part of his body to protrude from a car is negligent per se barring a recovery for injuries that would have been avoided had he kept entirely within the car, and as matter of fact that under the circumstances of this case appellee was so clearly negligent in permitting a portion of his arm to protrude from the car that a verdict for the defendant should have been directed. The first contention finds no support in Illinois cases. Even a failure to “look and listen” is not negligence as matter of law. (Dukeman v. Cleveland, C., C. & St. L. R. Co., 237 Ill. 104, 107, and authorities there cited.) Neither is getting off a train in motion. (Ardison v. Illinois Cent. R. Co., 249 Ill. 300.) And it has been expressly decided that allowing a portion of the arm to protrude from a car window is not negligence as matter of law. (Pell v. Joliet, P. & A. R. Co., 238 Ill. 510.) These are all questions of fact to be passed on by the jury, unless there is no evidence tending to show that a person injured was in the exercise of due care and caution, and no fact or circumstance appears from which a reasonable inference of such care and caution may be drawn. (Devine v. Pfaelzer, 277 Ill. 255, 258, 16 N. C. C. A. 167.) Cases may and do arise where the conduct of the plaintiff in any of these respects is so manifestly negligent that there can be no reasonable difference of opinion. As suggested in the Pell case, supra, if a passenger should have his head or body so far out of the window as to necessarily expose him to danger under the ordinary conditions which he might reasonably expect to exist, all reasonable minds would agree that his negligence contributed to an injury, and it would be the duty of the court to so inform the jury by a peremptory instruction. But this is not one of those cases. There is no dispute about the controlling facts. The seats were arranged along the side of the car facing front, as is usual in that kind of a conveyance. The guardrails at the window tended to protect a passenger if his arm rested on the window sill, but if he placed it on the back of his seat or the one in front of him it might easily project through the open space without his noticing it. It is not claimed that appellee knew the close proximity of passing cars at this point, but it is insisted that he ought to have known it. It is true, that he is charged with such knowledge of the conditions as the ordinarily prudent man would acquire from riding1 frequently over that part of the road; It was for the jury to say whether the conduct of appellee was that of an ordinarily prudent man in permitting his elbow to get from 2 to 4 inches outside the car window, and their conclusion must control unless it is manifestly against the weight of the evidence. They considered the evidence aided by their common sense and common knowledge of affairs. We do not think the court erred either in submitting the question, to the jury or in accepting their finding.

Appellant’s counsel say, but do not much argue, that there is not sufficient proof of the defendant’s negligence. We do not see any ground for that contention. The manner of constructing the tracks and operating the road here presented does not raise a scientific question requiring the evidence of experts, but under the authority of numerous Illinois cases is one to be determined by the jury guided by their common knowledge of human affairs. Our Supreme Court in the Pell case said, not as a matter of law but as matter of common knowledge: “In the absence of barrier or warning a passenger is not bound to presume that other cars will pass so close as barely to miss the car in which he is riding. There is usually a reasonable space between the passenger car and any structure or passing car.” There is no claim that the condition complained of was recent or temporary. It had existed a considerable time and cast a duty on appellant to effectually guard the opening or otherwise warn passengers of the danger. Ordinary prudence would require that, and appellant owed appellee a duty to exercise the highest degree of care consistent Avith the character and mode of conveyance and the practical operation of its business to prevent an accident. But appellant says the window was guarded by the iron rails, and therefore the case must be distinguished from those where there was no guard or warning. The answer is that it was not sufficiently guarded to reasonably protect the passenger against danger. Had the guardrails been continued to the top of the Avindow there would be more ground for argument that a prudent man would have taken notice of the danger. But this also Avas a question for the jury, and we do not see how they could have reasonably reached any other conclusion than that the defendant had neglected its duty to the plaintiff in failing to guard or warn him of a danger well knoAvn to the carrier and not likely to be knoAvn or realized by the passenger.

Complaint is made of the following instructions given at the instance of the appellee:

“The law is that if an ordinarily careful and prudent person situated as plaintiff avbs in the car in question just before and at the time of the accident, for his own safety would have conducted himself as plaintiff did as shown by the evidence and would have put his left hand or arm where plaintiff put his, as shown by the evidence; and if an ordinarily prudent and careful person for his own safety, without knowledge or notice that a car was about to pass the car in which he was then riding but going in the opposite direction on a parallel track, would have rested his elbow and arm on the window sill of said car or slightly above said sill or anywhere in the space of the open window so that the elbow projected slightly through the window; and if you believe from the evidence that plaintiff at said time did no less and omitted to do no act or thing for his own safety and to avoid being injured than that an ordinarily prudent and careful person situated as plaintiff then was would have done, then you are instructed that such acts on his part satisfied the rule of law that a person before he can recover for an accident like the one in question, must himself be in the exercise of ordinary care and caution for his own safety. And under the above circumstances if the evidence shows that the plaintiff was injured and damaged by any act or neglect of the defendant company enjoined upon it by law to use the highest degree of care, skill and prudence which human foresight and ingenuity could provide for the safety of the plaintiff, consistent with the ordinary operation of defendant’s road, the defendant is liable and you should return a verdict in his favor, and assess his damages, if any, in such amount as you may believe from the evidence he has sustained, not exceeding the sum of $15,000.”

Appellant says there is no evidence that appellee’s arm and elbow were on the window sill, or slightly above it, and that his arm protruded slightly; that the instruction is argumentative; that it is equivalent to telling the jury that an ordinarily prudent person would have stuck his aim over the guardrail; that it practically tells the jury appellant is an insurer of appellee,* that the instruction uses the phrase that appellant was required “to use the highest degree of care, skill and prudence which human foresight and ingenuity could provide for the safety of the plaintiff,” while “ingenuity” has no proper place in the instruction. It is not proper to tell the jury that though a material fact may exist, it does not show that the plaintiff has not a good case. The instruction assumes that appellee had no knowledge or notice that a car was about to pass, and the instruction ignores the rule requiring appellee to prove his case by the preponderance of the evidence. Appellant does not much argue these objections or point out evidence, lack of evidence, or authorities supporting them.

The instruction is too long and not well worded. It undertook to tell the jury that appellee was only required to exercise the care of an ordinarily prudent man under the same or similar circumstances, and that appellant was required, as said in the Pell case, “to exercise the highest degree of care consistent with the character and mode of conveyance and the practical operation of its business to prevent an accident to the plaintiff while riding upon the car.” There is unnecessary verbiage. The adjective “careful” is unnecessarily applied to the phrase “prudent man” in describing the standard for the plaintiff; •but naturally appellant does not object to that. There is a precedent in Williamson v. Grand Trunk Western Ry. Co., 159 Ill. App. 443, 445, for the use of the word “ingenuity,” in stating the standard of care required of the defendant. The subject of care required and liability of carriers in case of personal injuries is treated in 10 Corpus Juris, sec. 1294, and following sections. It is there pointed out that a great variety of expressions have been sanctioned by the courts, and said that “the nature of the business requires the use of a very high degree of care, prudence and foresight.” In Chicago City Ry. Co. v. Shreve, 226 Ill. 530, the court, citing authorities, said the railroad company “was required, in law, to do all that human care, vigilance and foresight could reasonably do, in view of the character and mode of conveyance adopted, consistent with the practical operation of its cars, to safely carry the appellee.” We know of no other precedent for the use of the word “ingenuity,” but we do not think it possible that it had any effect* whatever on the jury other or different than would the use of various authorized expressions meaning, as far as they would understand, practically the same. As to the other objections^ there was evidence that appellee’s arm was on the window sill just before the accident, and no question that at the time of the accident it was on the back of the front seat and projected from there over the top rail. We do not think the instruction meant or was understood as an argument telling the jury that an ordinarily prudent person would have put his arm over the guardrail. It did not tell the' jury that appellant was an insurer; and it is proper to tell the jury, though a fact may exist, it does not defeat a recovery, if such is the law. The instruction does not necessarily assume that appellee had no knowledge or notice that the car was about to pass. It limits any expression of that kind by requiring the jury to further believe that his conduct was that of an ordinarily prudent and careful person; but his own uncontradicted evidence was to the effect that he did not know a car was approaching. While the instruction does not announce the law that the plaintiff was required to prove his case by the preponderance of the evidence, the jury were in other instructions fully informed of that rule. We do not think the instruction should be used by the profession as a precedent. It may be criticized in other respects. All that it undertook to say, and all that it did say of any benefit to appellee, could have been better said with fewer words, but even admitting inaccurate expressions in the instruction, we believe they had no influence on the jury and should not be held reversible error. There is no other complaint as to instructions given or refused, no claim that the judgment is excessive, no claim that the court erred in ruling on evidence. Appellant in the first part of its brief in reciting its reasons for reversing the judgment does not say that the declaration is insufficient, but in its following argument there are. suggestions that it does not clearly charge negligence of the defendant, or aver due care of the plaintiff. There are several counts in the declaration, and we think it so clear that it was sufficient, certainly after verdict, that we need not discuss that point. Finding no reversible error in the record, the judgment is affirmed.

Affirmed.