author: Mr. Justice Matohett

text:
    Mark Owen & Company, Appellant, v. Michigan Central Railroad Company, Appellee.
    Gen. No. 24,407.
    1. Cabbiebs, § SO

      —how interstate liability determined. The liability of a carrier upon an interstate shipment is to be determined, as to the law, by the Interstate Commerce Act, and the decisions of the United States courts construing it.
    2. Cabbibks, § 46*—how bill of lading construed. If any doubt arises as to the construction of a bill of lading, the words should be construed most strongly against the carrier.
    3. Cabbiebs, § 46*—when bill of lading construed as continuing common-law liability. Language of uniform bill of lading construed and held to mean that the common-law liability as a carrier continues as to goods not removed, for 48 hours after placement of the car containing the goods and notice to the assignee.
    Appeal from the Municipal Court of Chicago; the Hon. Leo .1. Doxlb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed and judgment here.
    Opinion filed April 29, 1919.
    William B. Moulton and Joseph A. Bates, for appellant.
    Winston, Strawn & Shaw, for appellee; Frank H. Towner, of counsel.

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

   Mr. Justice Matohett

delivered the opinion of the court.

Plaintiff appeals from a judgment in favor of defendant, on trial by the court. The facts are stipulated.

The defendant appellee is a common carrier. In September, 1915, at points on its line in the State of Michigan, it received for shipment to Chicago, Illinois, 4 carloads of grapes in baskets. The cars were consigned to plaintiff. Upon arrival, these cars were placed upon a public delivery team track, and plaintiff was notified of their arrival and placement. The shipments were at that time intact. Plaintiff examined the cars and accepted them. It broke the seals upon the cars and began to unload the grapes without any assistance from defendant carrier. The unloading was completed within 48 hours from the receipt of notice, but some time before its completion, 127 baskets of grapes of a conceded value of $23.30 disappeared and were never, in fact, received by the plaintiff consignee. The claim of the plaintiff against the defendant is for the value of these grapes.

The grapes were shipped under a standard bill of lading, and certain rules and regulations of defendant which had been lawfully filed with the Interstate Commerce Commission were in effect and applicable thereto at thé time the shipments moved and were delivered. One of these rules provided that the carrier agreed that shipments of green fruit or vegetables would be received at or delivered to the car door without additional charge for loading or unloading. By another rule the consignee was given 48 hours time to unload shipments, the time to be computed from “The first 7 a. m., after placement on public delivery tracks and after the day on which notice of arrival is sent to consignee.”

The bills of lading provided: “The carrier or party in possession of any of the property herein described, shall be liable for any loss thereof or damage thereto, except as hereinafter provided * * *. For loss, damage or delay caused by fire occurring after forty-eight hours (exclusive of legal holidays) after notice of the arrival of the property at destination or at port of export (if intended for export) has been duly sent or given, the carrier’s liability shall be that of warehouseman only * * *.

“Section 5. Property not removed by the party entitled to receive it within forty-eight hours (exclusive of legal holidays) after notice of its arrival has been duly sent or given, may be kept in car, depot or place of delivery of the carrier or warehouse, subject to a reasonable charge for storage and to carrier’s responsibility as warehouseman only, or may be, at the option of the carrier, removed to and stored in a public or licensed warehouse at the cost of the owner, and there held at the owner’s risk, and without liability on the part of the carrier, and subject to a lien for all freight and other lawful charges, including a reasonable charge for storage.”

We think appellee is right when it says the one question to decide is whether appellee was liable as a warehouseman or common carrier. If it was liable as a common carrier, then plaintiff was entitled to judgment. If its liability was that of a warehouseman, in the absence of proof of negligence, the defendant was entitled to judgment in its favor. United Metals Selling Co. v. Pryor, 243 Fed. 91.

What, if any, was defendant’s liability must be determined from the bill of lading and rules filed as applicable. The shipment moved in interstate commerce. The law to be applied is, therefore, that of the Interstate Commerce Act, and the decisions of the United States Courts construing that act. That legislation has superseded all 'State laws and regulations. Gamble-Robinson Commission Co. v. Union Pac. R. Co., 262 Ill. 400.

As is said in St. Louis, I. M. & S. R. Co. v. Starbird, 243 U. S. 592: “Since the passage of the Carmack amendment, the State court must he held to have known that interstate shipments were covered by uniform federal rules which require issuance of a bill of lading, and that that bill of lading contains the entire contract upon which the responsibility of the parties ■ rested. This is the result, not only of our own holdings, but as universally held in the State courts.” The parties are held to the responsibility imposed by federal law exclusively. Southern Ry. Co. v. Prescott, 240 U. S. 632. The rule by which bills of lading must be interpreted is stated in Texas & P. R. Co. v. Reiss, 183 U. S. 621. The court there held that if there be any doubt arising from the language used in the bill of lading, as to its proper meaning or construction, the words should be construed most strongly against the carrier, because its officers or agents prepared the instrument, and it is therefore reasonable and just that its own words should be construed most strongly against itself. Appellant contends that applying this rule to the contract of shipment in this case, the status of appellee remained as a common carrier for 48 hours after the placement of the cars and after notice to the consignee. Appellee contends that the proper construction of the contract is that the term of 48 hours is merely a limitation; that its true meaning is appellee would not be liable, in any event, beyond 48 hours from the time of placement and notice. This evidently was the view of the trial court. It held, at request of defendant, as proposition of law No. 5, “that the action of plaintiff herein in accepting the cars involved in this action and breaking the seals thereon and starting to unload said cars, terminated the defendant’s liability as a common carrier, and that thereafter defendant was only liable as a warehouseman.”

The language of the bills of lading, we think, precludes the construction given by the court. Section 5, by its terms, is limited to ‘ ‘ Property not removed. ’ ’ The use of the word “removed” instead of the word “delivered,” in view of the previous hopeless conflict in the authorities as to what facts would or would not constitute delivery, was evidently not accidental. We think the plain meaning of the contract is that the common-law liability of the carrier continues for 48 hours after placement and notice with respect to such part of the shipment as has not been removed.

This uniform bill of lading has not been construed by any federal court so far as we are informed. It has been construed by the Supreme Court of Montana in the case of Gary Bros. & Gaffke Co. v. Chicago, M. & P. S. R. Co., 49 Mont. 524, 143 Pac. 955. The shipment there was intrastate and of potatoes. The potatoes froze within 48 hours from placement and notice. The court held that the only thing which could have exonerated the carrier was the remdval of the potatoes, saying: “In other words, the contract itself not only fixes the liability of the carrier, but defines the character of the delivery which will suffice to avoid it * * *. Whatever, in the absence of the contract, might have been the effect of the circumstances disclosed by the evidence, there was no removal of the potatoes before they were frozen.” In Rustad v. Great Northern R. Co., 122 Minn. 453, 142 N. W. 727, the court, in construing the same bill of lading said: “The shipper gets a somewhat greater liability of the defendant, as an insurer, by the provisions of the shipping bill, for he has the carrier liability for the full period of 48 hours, though the law might have terminated it before.”

We think, in view of the words used in the bill of lading, and the rule that the shipping contract is construed most strongly against the carrier, it is reasonable to hold that, unless the fruit were removed from the control of the carrier, its common-law liability would continue for 48 hours after notice of arrival to the consignee. We, therefore, think that the holding as to the law applicable to the agreed state of facts was incorrect.

The judgment of the Municipal Court will therefore be.reversed and judgment entered here in favor of appellant and against appellee for the sum of $23.30, the value of the grapes.

Reversed and judgment here.


source: Caselaw Access Project

author: Mr. Presiding Justice O’Connor

license: Public Domain

text:
    Elizabeth Brownlie, Robert T. Brownlie and William Y. Brownlie, Appellees, v. Franklin Hardinge and Hardinge Brothers, Inc., Appellants.
    Gen. No. 25,247.
    1. Basements, § 47

      —right of dominant owner to extend. An easement of a right of way in a private alley in favor of a lot abutting thereon cannot be extended to an adjoining lot by the unauthorized act of the owner of the dominant estate.
    2. Easements, § 61*—when bill to restrain obstruction shows unauthorized use. In a suit to restrain the obstruction of a private alley, allegations of the bill held sufficient to show that complainants used the alley in question as a means of access to a lot adjoining the lot which constituted the dominant estate.
    3. Basements, § 57*—when obstruction not justified by unauthorized extension. Unauthorized extension of an easement in a private alley by using it in connection with a lot adjoining the dominant, lot will not authorize the owner of the servient estate to obstruct the alley.
    Interlocutory appeal from the Circuit Court of Cook county; the Hon. Mebbttt W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court.
    Affirmed.
    Opinion filed April 30, 1919.
    William Gr. Lesemann, for appellants.
    Clayton W. Mogg, for appellees.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal the defendants seek to reverse an order of the Circuit Court of Cook county, denying their motion to dissolve' an injunction restraining them from obstructing a private alley. The grounds of the motion were that there was no equity shown by the bill and that complainants had an adequate remedy at law.

■ The allegations of the bill, so far as material, are: That the complainant Elizabeth Brownlie was the owner of Lots 28 and 29, and that the defendant Franklin Hardinge was the owner of Lots 30 to 34, both inclusive, in a certain subdivision in Chicago. Lots 28 and 29 are each 33 feet by 164.80 feet, and face west on an 80-foot street, with a 20-foot alley in the rear. Lots 30 to 34, both inclusive, are each more than 32 feet in width' and 145 feet in length. They face north on Berteau avenue and extend south to the north line of Lot 29. In platting the subdivision the south 12 feet of Lots 30 to 34, both inclusive, which lie along the north line of Lot 29, were “reserved as a private alley for the use of owners and occupants of Lots Twenty-nine (29) to Thirty-four (34) inclusive.” The bill further alleges that complainants Robert T. Brownlie and William' T. Brownlie occupy Lots 28 and 29 in the operation of their stone-cutting business, and that they have been using the 12-foot strip reserved as means of ingress and egress to and from their business; that the defendants who own and occupy Lots 30 to 34 constructed a building on the rear of their lots extending to the north line of the 12-foot strip, or private alley; that shortly thereafter the defendants placed gates at both ends of the 12-foot alley; that the gates are 10 feet high and fastened on the inside in such a way as to completely bar the alley; that as soon as complainants discovered these gates they demanded their removal, which was refused by the defendants, who claimed that they owned the 12-foot strip free of any claim of the complainants; that shortly thereafter the defendants began excavating in the private alley for the purpose of erecting a steam-boiler room, which will extend clear across the 12-foot strip and approximately 35 feet in length, and thus completely obstruct the alley.

The defendants first contend that the sole right to use the 12-foot strip was limited to Lot 29 and did not include Lot 28, which lies immediately south of and adjoining Lot 29; that this easement appurtenant to Lot 29 could not be enlarged or extended to Lot 28, which was not included in the grant creating the easement, and that since the bill shows that the complainants had unlawfully extended the easement to Lot 28, the owner of the servient estate (Lots 30 to 34) had a right to obstruct the entire easement and close up the alley. Both parties agree that the easement extended to Lot 29 cannot be lawfully extended to Lot 28, and indeed there can be no room for argument that such an easement cannot be enlarged or extended by the unauthorized act of the owner of the dominant estate. D. M. Goodwillie Co. v. Commonwealth Elec. Co., 241 Ill. 42.

Complainants, however, contend that there are no allegations in the bill showing that they have used the 12-foot strip as appurtenant to Lot 28. We cannot agree with this contention, and while most of the allegations have reference to Lot 29, yet we think there are sufficient allegations to show that complainants used the 12-foot strip as a means of ingress and egress to and from Lot 28. But having reached this conclusion, we do not agree with defendants’ contention that by such unauthorized extension of the easement by complainants, the defendants have the right to obstruct the alley and destroy the entire easement.

In Diocese of Trenton v. Toman, 74 N. J. Eq. 702, it was held that, where an automobile garage was erected on two lots, one of which was entitled to an easement over an alley and the other not, an injunction would lie on behalf of the adjoining property owner to prevent the use of the alley for the nondominant lot, but that the owners of the garage might use the alley as a means of ingress and egress to and from the dominant lot.

In McCullough v. Broad Exch. Co., 101 N. Y. App. Div. 566, 92 N. Y. Supp. 533, the exchange company owned a lot which had an easement over adjacent property for ingress and egress. It also owned another lot having no such right. It erected on the two lots a 22-story office building, designed to accommodate 7,000 tenants. There were 18 passenger elevators. The heating plant for the entire building rested upon the dominant lot. The easement was used for the benefit of the entire building. The owner of the servient estate brought suit asking that the easement be forfeited and extinguished on the ground that it had been unlawfully extended by the exchange company. A decree was entered forfeiting the easement and perpetually enjoining the exchange company from using it. The Court of Appeals modified the decree by striking out the provisions relating to the forfeiture of the easement and modified the injunction so as to enjoin the exchange company from using the easement until such time as the building might be altered so that the easement could be used for that portion of the building resting on the dominant estate. The court there said (536): “We find no definite evidence indicating that it would be feasible or practicable to alter the building in such manner that the tenants of that part of it which is constructed on the premises formerly known as 52 Exchange Place might he separated from the others, and, in the exercise of the lawful right of the appellant owner, be permitted to use the alley and areaway for ingress and egress, or that the power plant and other use of which complaint is made might be likewise separated. However, it is not impossible to make this separation, and, if the owner wishes to do so, we see no reason why it should not be permitted. Moreover, the office building may be destroyed or otherwise demolished or removed at any time, and in that event it would seem that the owner should be permitted to enjoy the easement in connection with that part of his premises to which the easement was appurtenant. * * * An unlawful ox excessive use of an easement may be enjoined, but it is difficult to see upon what principle of law the court is authorized to declare it forever and altogether forfeited and extinguished because of an unauthorized or excessive use. It is a valuable property right, and we know of no authority for transferring its title, against the will of the owner, except by due process of law, involving just compensation.”

Under these authorities it is clear that the defendants have no right to barricade the alley and construct the heating plant which would effectually destroy the easement, and they were therefore properly enjoined, for it is manifest that an action at law would not afford complainants an adequate remedy. Smith v. Young, 160 Ill. 163.

The order of the Circuit Court of Cook county is affirmed.

Affirmed.


author: Mr. Justice Taylor

text:
    Anna J. S. Harmon, Appellee, v. A. P. Callahan, Appellant.
    Gen. No. 22,404.
    1. Landlord and tenant—duty of landlord to minimize damages Toy reletting. In the absence of any agreement in a lease requiring a landlord to relet the premises, or of voluntary action on his part in that regard, mere abandonment of leased premises and re-entry by the landlord will not oblige him to endeavor, by affirmative action, to decrease the tenant’s liability.
    2. Landlord and tenant—right of tenant to recoup loss from lessor’s failure to endeavor to relet. A provision in a lease that if the premises are abandoned or vacated they “shall be relet” by the landlord makes it his duty, upon abandonment by the tenant to endeavor, with reasonable diligence, to relet the premises; and defendant may show the loss resulting, from the landlord’s failure to do so and, to that extent, reduce his own liability for rent.
    3. Landlord and tenant, § 317

      —when affidavit of merits presents issue in action for rent. In an action against a guarantor for rent of premises, abandoned by the tenant, under a lease which provided that if the premises are abandoned or vacated they “shall be relet” by the landlord, an affidavit of merits which averred that the landlord not only failed to use diligence in endeavoring to relet, hut gave out information to prospective tenants that she did not care to rent the property but wanted to sell it, and refused to receive propositions looking to the renting of the premises, presented an issue of fact which defendant was entitled to have tried.'
    4. Landlord and tenant, § 317

      —when issue of fact on termination presented in action for rent. In an action against a guarantor for rent of premises abandoned by the tenant, an affidavit of merits which alleged that, after re-entering, the landlord, by her conduct, terminated the lease and brought to an end defendant’s liability thereunder, involved matters of fact which defendant was entitled to have tried.
    Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the April term, 1918.
    Reversed and remanded.
    Opinion filed April 30, 1919.

      Willard C. McNitt and Joseph A. Bates, for appellant; John L. Hopkins and Donald J. De Wolfe, of counsel.
    Culver, Andrews, King & Cook, for appellee; Wells M. Cook, of counsel.

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

   Mr. Justice Taylor

delivered the opinion of the court.

In a former opinion in this cause, we affirmed a judgment, in favor of the plaintiff, on the ground that the motion to strike an affidavit of merits from the files was not preserved by a bill of exceptions. Harmon v. Callahan, 207 Ill. App. 506. Since then the matter has been presented to the Supreme Court (Harmon v. Callahan, 286 Ill. 59) and we have been directed by them “to order the clerk of the Municipal Court of Chicago to certify to the Appellate Court the motion to strike the affidavit of merits from the files and then to consider the cause upon the merits. ’ ’ The record now before us contains the motion to strike, and all that remains for us to determine is whether the affidavit of merits presented a good defense.

The plaintiff’s statement of claim in the Municipal Court was to the effect that the defendant, as guarantor of the rent of a certain lease, was liable to the extent of the rent accruing between February 1, 1912, and April 30,1913, at $166.67 a month; that the plaintiff leased the premises known as 4035 Lake avenue, Chicago, to one Mary Foley, by a written lease dated .April 26, 1910, for a term commencing May 1, 1910, and ending April 30, 1913; that the defendant wrote a guaranty on the back of said written lease; that the plaintiff on January 11, 1913, in another suit recovered judgment against the defendant for $1,667.70 and costs of suit as guaranty of the rent accruing between April 1, 1911, and January 31, 1912; that the latter judgment establishes the validity of the lease and the guaranty as to the rent becoming due on said lease after January 31, 1912. The claim of the plaintiff was for $2,500. The defendant filed an affidavit of merits and subsequently an amended affidavit of merits. The plaintiff then moved that the amended affidavit of merits be stricken and the court granted the motion, with the exception of a part of the amended affidavit of merits, and entered judgment in favor of the plaintiff and against the defendant in the sum of $2,297.60.

Was the trial judge justified in striking the second amended affidavit of merits and entering judgment? The defense stated therein is substantially as follows : (1) That the plaintiff has repossessed herself of the premises and treated the terms of the lease as ended; that the plaintiff installed one Mary M. Seed in possession of the premises on or about October 1, 1911, and allowed her to remain in possession as a tenant until May 1, 1912; that tie collected $100 in rent from her and gave her credit on account of rent for the sum of $102.40 for repairs on the building; that the repairs were not such as the defendant was chargeable with under the lease; that the plaintiff afterwards took judgment against said Mary M. Seed for $753 for rent for said premises, “all of which 'plaintiff retained for her own benefit, and in nowise credited to' this defendant or to Mary Foley, nor' has any offer to credit the same been made, * * * or offered to be made, either to this defendant or to Mary Foley”; that the plaintiff did not comply, and made no reasonable effort to comply, with clause 7 of the lease in re-renting or at-, tempting to re-rent the premises; that Mary Foley vacated and abandoned the premises in March, 1911; that on January 31, 1912, the plaintiff was informed by Mary M. Seed that she was unable to pay rent; that notwithstanding that information the plaintiff “wholly failed to make any effort to put a tenant who would pay any rent at all into said premises” in violation of clause 7; (2) that after February 1, 1912, the plaintiff had possession, charge and control of the premises, pursuant to the terms of the lease, to the exclusion of all rights which the said Mary Foley ever had under her lease; that the plaintiff, after the vacation of said premises for the remainder of the term, stated by her agent to prospective tenants that she did not want to rent the property but wanted to sell it; that she made great effort to sell the premises, “showing persons through the premises, and refusing to entertain propositions to rent,” etc.; that the plaintiff has at all times since January 31, 1912, by her conduct, treated the lease as absolutely terminated; that after January 31, 1912, the plaintiff failed to comply with the requirements of the lease as to renting the premises; that no effort was made to get another tenant; that the plaintiff could have rented the premises at some rental but failed to do so and “failed to make an honest effort to do so; that plaintiff had the keys to the property, had possession of the same, treated it as her own property, exercised complete dominion over it to the exclusion of any rights of Mary Foley under said lease, and was guilty of such conduct and such omissions of duty in violation of the terms of said lease as amounted to.a breach of contract.”

In considering the nature of the defense set up in the amended affidavit of merits, it is necessary to consider the terms of the written lease. It is provided, in paragraph “seventh” of the lease, as follows: “If said party of the second part shall abandon or vacate said premises, the same shall be relet by the party of the first part for such rent, and upon such terms as said first party may see fit; and if a sufficient sum shall not be thus realized, after paying the expenses of such reletting and collecting, to satisfy the rent hereby reserved, the party of the second part agrees to satisfy and pay all deficiency.”

Analyzing the amended affidavit of merits there is found set forth two defenses: (1) That the plaintiff re-entered and took possession of the premises and by bis conduct terminated the lease and the defendant’s liability thereunder; (2) that the plaintiff after re-entering should have made an effort to re-rent the premises, but failed to do so. The amended affidavit of merits does not deny the execution of the lease nor the guaranty of the defendant. As to the defense that the plaintiff did not use reasonable diligence to relet, the trial judge evidently ruled, in substance, that the plaintiff did not owe the defendant the duty to use reasonable diligence to relet the premises and thus decrease the loss of damage to the defendant.

The law in this State concerning the obligation of a landlord, after abandonment by the tenant and re-entry by himself, is not altogether plain. In Contratto v. Star Brewery Co., 165 Ill. App. 507, the court held that it is the duty of the landlord to re-rent the premises and reduce the damages suffered by the tenant. That purports to be based on West Side Auction House Co. v. Connecticid Mut. Life Ins. Co., 186 Ill. 156. But in the latter case the court only decided that as the evidence showed that neither the tenant surrendered nor did the landlord accept possession, there was no abandonment of the premises by the tenant, and no question arose as to liability on the landlord to endeavor to re-rent the premises. Mr. Justice Adams in Rau v. Baker, 118 Ill. App. 150, interpreting the West Side Auction House Co. case, supra, denied that it held that a landlord in case of abandonment by the tenant was bound to re-rent, if possible, or lose his rent. Further, in the case of Rau v. Baker, supra, it was stated—the principle being definitely involved in the decision of the case: “We know of no case in which it has been held that the landlord must, if he can, re-rent or lose his remedy against the lessee on the lease; nor do we think any such case can be found. The contract remains in force, notwithstanding the abandonment of the premises by the tenant, and the tenant’s covenant to pay rent is unimpaired; and we cannot understand how the tenant, by his own wrongful act, can impose on his landlord the alternative of diligently seeking another tenant or losing his remedy on the covenant.” In McCormick v. Loomis, 165 Ill. App. 214, the court assumed, although there was no evidence even of re-entry by the landlord, that the latter “could only recover the rent agreed to be paid * * * less whatever she could have realized out of the premises as rents by the use of due diligence after they came into her possession.” It would seem to be the law that where a lease is made, and subsequently the premises are abandoned by the tenant, and following that there is merely a re-entry by the landlord, the original contract still stands and the tenant is liable on his promise to pay rent; that mere abandonment and re-entry do not cancel the lease; and, further, that, under such circumstances, the mere abandonment of the premises by the tenant and reentry by the landlord does not give rise to an obligation on the landlord to endeavor to re-rent. Of course, after re-entry, the landlord may by writing make himself liable to exercise diligence in re-renting, or he may re-enter and relet and be chargeable with the rents he actually obtains. But, in the absence of any such voluntary conduct, mere abandonment and re-entry do not oblige the landlord to endeavor, by affirmative action, to decrease the tenant’s liability. The tenant and the landlord fixed their obligations when the lease was made, and no subsequent ex parte conduct on the part of the tenant and mere re-entry by the landlord, which may be for the necessary preservation of the premises, should increase the obligations of the landlord.

It is important to observe, however, that, in the instant case, clause 7 of the lease expressly provides that if the premises are abandoned or vacated they “shall be relet” by the plaintiff. The facts here, therefore, are distinguishable from those in the cases cited above. In none of the foregoing cases was there an express contract by the terms of which the landlord was bound to exercise reasonable diligence to relet the premises. The contingency, that is, abandonment, for which the lease provided, having occurr.ed, it then became the duty of the landlord, in fulfillment of his written promise, to endeavor, with reasonable diligence, ,to relet the premises; and, it follows, if the tenant is able to show a failure on the part of the landlord, he, the tenant, may be entitled to put in evidence going to show the loss, and to that extent reduce his liability for rent.

The defendant in her affidavit of merits avers that the plaintiff .failed to make any effort whatever to relet the premises and that the plaintiff not only failed to use diligence in endeavoring to re-rent the premises, but gave out information to prospective tenants “that she did not care to rent the property, but wanted to sell it,” etc., and, further, that she refused to receive propositions looking to the renting of the premises; certainly those averments precipitated an issue of fact. Also, the charge by the defendant that the plaintiff, after re-entering, by his conduct, terminated the lease and brought to an end the liability of the defendant thereunder, involved matters of fact which the defendant was entitled to have tried.

Being of the opinion, therefore, that the amended affidavit of merits should not have been stricken, the judgment is reversed and the cause remanded for trial.

Reversed and remanded.


text:
    John Grigaitis, Appellee, v. Kazimiers Gaidauskis and Mariona Gaidauskis, Appellants.
    Gen. No. 24,118.
    1. Liens, § 4

      -^whep equitable created by oral promise to give mortgage. Where one furnishes money for the purchase of certain property upon an oral promise of a mortgage, on such property, an equitable lien upon the property is thereby created which will be treated in equity as an actual mortgage.
    2. Liens, § 4*—when evidence shows loan as promise to give mortgage. Evidence examined and held to establish a loan from plaintiff to defendants to enable them to purchase certain real estate, and an oral promise by defendants to thereafter execute and deliver a mortgage thereon to secure repayment of the loan, so as to justify the imposition of an equitable lien upon the property.
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Affirmed.
    Opinion filed April 30, 1919.
    Walter F. Sommers and Lawrence A. Cohen, for appellants.
    N. W. Cambell, for appellee.

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

   Mr. Justice Taylor

delivered the opinion of the court.

This is an appeal by defendants Gaidauslds from a decree of the Superior Court of Cook county finding that the complainant is entitled to an equitable lien on certain real estate which was purchased by them— in part at least—with money he advanced.

The bill of complaint and amendments allege that complainant loaned to the defendants on or about July 3, 1912, the sum of $1,500, with the express understanding and agreement that the defendants would use said sum in the purchase of certain real estate, which is described as follows:

“Lot twelve (12) in Block five (5) in Gage, LeMoyne Hubbard and others subdivision of the east half (E. %) of the southeast quarter (S. E. 14) of Section thirty-two (See. 32) Township thirty-nine (T. 39) north, Range fourteen east of the Third Principal Meridian.”

That the defendants would thereafter execute and deliver a mortgage thereon to fully secure the repayment to the complainant of said loan together with interest; that the money so loaned was, pursuant to the “original understanding and agreement,” invested by the defendants in said property and constituted part of the purchase price; that he had requested the defendants to either repay the sum loaned or else execute and deliver the mortgage provided for in the agreement. The bill concludes with a prayer for a lien on the real estate and that a mortgage be executed thereon by defendants and delivered to complainant, and for general relief.

In their answer the defendants deny the alleged loan of $1,500, or any part of such a, sum, but admit buying the property on July 29,1912, from one August Barz for the sum of $3,000 cash, subject to an incumbrance of $2,500; that the money paid was accumulated from their savings, rents, and the proceeds of the sale of other real estate.

On March 24, 1917, the matter was referred to a master in chancery, and subsequently his report and the evidence were filed in court. It was then ordered that the objections to the master’s report stand as exceptions before the court. On March 26, 1917, the defendants executed and delivered to William H. Jamagan their trust deed of the above described real estate and also certain notes to secure the payment of the sum of $3,000. Thereupon complainant filed his supplemental bill against the Central Manufacturing District Bank and William H. Jamagan, defendants, charging them, among other matters, with conspiring with the defendants to incumber the property in question. The Central Manufacturing Bank and Jamagan filed their answer and, among other things, deny that they conspired to defraud complainant or to cloud the real estate described in the amended bill, but state that they received the notes described for a good and valuable consideration.

The master’s report finds that on July 3, 1909, the complainant loaned the defendants the sum of $300, and on July 3, 1912, loaned them the sum of $1,200, and that it was agreed then and there that the loans should bear 4 per cent interest; that these amounts were “to be invested in the purchase of the real estate described in complainant’s amended bill”; that the defendants did thereafter on July 29, 1912, so invest said money; “that it was further agreed at the time the loan was so made that they would repay it at the expiration of one year; that it was further agreed that they would give complainant a trust deed or mortgage on the said real estate described to secure said loan”; that the amount due the complainant from defendants on July 9, 1917 (the date of the report) was the sum of $1,801.15; that the defendant Central Manufacturing District Bank, during the pendency of the suit, loaned the defendants $2,432 secured by trust deed to William H. Jarnagan as trustee on the property in question; that the complainant is entitled to an equitable lien on the property to the extent of his claim with interest; that the defendants should repay said amount within 30 or 60 days or the property be sold to satisfy the lien; that the trust deed to Jarnagan is subject to the lien of the complainant.

Defendants filed objections to each finding of the master, all of which were overruled. The court ordered that all exceptions to the master’s report be overruled and the report approved and confirmed in all things. A decree was entered on October 22, 1917, in conformity with the master’s findings of fact and law, ordering that the complainant be given an equitable lien upon the real estate described in the amended bill of complainant and the master’s report, as security for the payment to him by the defendants of his claim, by reason of his loan to them, amounting to the sum of $1,826.92, together with the master’s and stenographer’s fees, and that unless payment be made in full within 40 days, the property be sold, etc.

The complainant and defendants are Lithuanians, and testified through an interpreter.. Mrs. Gaidauskis is the daughter of complainant’s sister. The men when they first came to the United States were laborers. The complainant got employment in a street car shop in the repair gang fixing cars, and for seven years was paid $3 a day up to the time he made the loan to the defendants. His board and lodging cost him $12 a month. Gaidauskis made $2.20 a day, with $3 to $5 extra time each month, for about 6 years. It cost him about $6 a week to live prior to his marriage in 1907, and as another source of income, his wife kept roomers at the rate of $3.50 a month each.

The complainant testified that on July 3, 1912, the defendants asked him to lend them $1,500; that he told them he would let them have $1,200, and that, with the former loan of $300 which he had made them, it would make $1,500; that the same morning he went to get the money out of the three banks in which he had it deposited; that he handed the money to the defendants and said he could lend it for one year; that the interest should be 4 per cent; that they promised that if they did not pay the loan within the year they would give him a mortgage. It was admitted by defendants ’ counsel at the trial that he examined the bank books and found that the complainant had on deposit in the Peoples’ Stock Yards State Bank $921, which was withdrawn by complainant on July 3, 1912; that complainant'also had on deposit $210 in Melschavicz’s bank, which was withdrawn by complainant on July 3, 1912; that the complainant also withdrew $100 from Olzewski’s bank on the same day.

Melschavicz testified that he was a banker and real estate man and handled the deal in question for the defendants; that defendant Kazimiers Gaidauskis deposited in his bank, according to the entries in his books, on July 3, 1912, the sum of $1,100. The evidence shows that the defendants bought the property in question on July 29,1912, and paid the sum of $3,000 in cash and assumed an incumbrance, then on the property, amounting to the sum of $2,500.

The defendants, after the purchase of the property, took possession and were occupying it at the time of the trial. Some time during the following 2 years they paid off the $2,500 incumbrance, but failed to pay the complainant. On November 19, 1914, the complainant asked them to execute a note for $1,500 payable to him and a trust deed on the property to secure the same. This they refused to do. The note and trust deed were introduced in evidence by the complainant, the property being described in the trust deed as “929 West 35th place, Lot twelve (12), Block five (5), Gage, LeMoyne Hubbard and others subdivision, east half (E. y2) of the southeast quarter (S. E. %), Section thirty-two (Sec. 32), Township thirty-nine (T. 39), North, Range fourteen east of the Third Principal Meridian, situated in the County of Cook in the State of Illinois.” Subsequent to the reference of this cause to the master in chancery, a trust deed on the property was executed and delivered by the defendants to one William H. Jarnagan, trustee, and is therefore subject to the rights of complainant, if any.

It will not be necessary to consider the evidence in regard to the loan of $1,500 by the complainant to defendants, although it is denied in toto by both defendants, as the proof on that point is ample and not even questioned by their counsel in their brief.

Two defenses were urged by the defendant: First, that the property, on which the lien is claimed, is not sufficiently designated. Second, that the alleged oral agreement to give a mortgage is too vague and indefinite to be enforced in equity. Counsel lay stress on the fact that a sufficient description of the property in question nowhere appears in the testimony of the complainant. They point out that it is only referred to by complainant as a brick property for six families located at 35th and Gage street “now occupied by” defendant. Defendant, Gaidauskis, testified that he lived at 929 West 35th place and that he had lived there since July 29, 1912; that they bought the property for $5,500, paying $3,000 cash and assumed an incumbrance of $2,500. The defendants, in their answer, admit the purchase of the property on these terms and give the same legal description as that set out in the bill of complainant. It is not denied specifically by the defendants that the complainant presented to them for execution the trust deed and note introduced in evidence by the complainant, in which the legal description of the property is the same as that of the bill, and is described as being situated at 929 West 35th street. It is not denied by the defendants that Gaidauskis told the witness Dominic Stankus, in August, 1914, when the latter went to buy the property in which they were living, 929 West 35th street, that they owed complainant $1,500, and that complainant had a mortgage of $1,500 on the property, and that they were paying 4 per cent interest on the loan. The uncontradicted testimony of this witness on the most important questions of fact involved in the case fairly sustains complainant’s contentions and identifies the property. Other witnesses testified to admissions of a somewhat similar kind by the defendants.

Counsel for the defendants cite one case in support of .their contention that an oral agreement to give a mortgage is too vague and indefinite to be enforced in equity. Meixel v. Meixel, 146 N. Y. Supp. 587. In the latter case there occurs the dictum. “A lien upon land cannot he created by an oral agreement to give a mortgage,” etc. That might seem to be important, were it not for the fact, however, that the decisive question in that case was whether a widow by reason of such an agreement could be deprived of her dower. The facts were, in that case, that the agreement to give the mortgage—to which agreement she was not a party—was not made until 3 years after the 'defendant’s husband had acquired a half interest in the property. “Obviously, under such circumstances,” the court says, “it had no effect upon her dower rights.” In Payne v. Wilson, 74 N. Y. 348, the court says: “It has been held,, that an agreement for a mortgage is, in equity, a specific lien upon the land.” Citing, In re Howe, 1 Paige (N. Y.) 125; Chase v. Peck, 21 N. Y. 581. In the case of Sprague v. Cochran, 144 N. Y. 112, the court says: “There can be no doubt upon the authorities that where one party advances money to another upon the faith of a verbal agreement by the latter to secure its payment by a mortgage upon certain lands, but which is never executed, * * * equity will impress upon the land intended to be mortgaged a lien in favor of the creditor who advanced the money for the security and satisfaction of his debt. This lien attaches upon payment of the money.” The court in support of its decision then cites, among others, the following cases: Perry v. Board of Missions, 102 N. Y. 99; Smith v. Smith, 125 N. Y. 224. The law is well stated in Pomeroy’s Equity Jur. sec. 1237: “The

form or particular nature of the agreement which shall create a lien is not very material, for equity looks at the final intent and purpose rather than at the form; and if the intent appear to give, or to charge, or to pledge property, real or personal, as a security for an obligation, and the property is so described that the principal things intended to be given or charged can be sufficiently identified, the lien follows.” That language has been quoted and sanctioned in many cases in various jurisdictions. Where one furnishing a consideration is promised a mortgage on certain specified real estate, an equitable lien is thereby created. Pursuant to the maxim that equity will consider that which ought to be done as already in being, the promise to give a mortgage to secure a loan may be treated as an actual mortgage. Lohmeyer v. Durbin, 206 Ill. 574.

The master found the facts, and we do not feel justified, upon the record as it appears before us, in finding otherwise; also, the principles which were applied thereto, by the chancellor, were, in our judgment, according to the law. Under the circumstances we are bound to affirm the decree.

Affirmed.


text:
    Chicago & Western Indiana Railroad Company, Appellee, v. The Guarantee Company of North America, Appellant.
    Gen. No. 24,145.
    1. Indemnity, § 24

      —when provisions of bond as to audit complied with. In an action upon a bond for the indemnification of plaintiff against defalcation by its employees, evidence held to show a compliance by plaintiff with provisions of the bond for audits and verification of accounts of such employees.
    2. Indemnity, § 24*—when misrepresentations on renewal not shown. In an action upon a bond for the indemnification of plaintiff against defalcation by certain of its employees, evidence for defendant held not to show anything in the nature of misrepresentation by plaintiff in certificates given at the times of renewal of the bond.
    3. Indemnity, § 22*—when instruction on waiver of provision limiting time for suit properly refused. In a suit upon an indemnity bond in which it was contended that negotiations for settlement of plaintiff’s claim amounted to a waiver by defendant of the expiration of the period limited in the bond within which suit could be brought, held that the question of waiver was for the jury, and an instruction requested by defendant that “the mere pendency of negotiations * * * conducted in good faith with a view to a compromise of the plaintiff’s claim * * * was not of itself a waiver,” was properly refused.
    4. Indemnity, § 24

      —when offer of compromise admissible though made after expiration of period for suit fixed by bond. In an action upon a bond indemnifying plaintiff against defalcation of its employees, held that a letter of defendant concerning a compromise of the claim offered for the purpose of showing a waiver of the period of limitations fixed in the bond was properly admitted though written after expiration of the time provided by the bond for suit after discovery of a defalcation.
    Appeal from the Municipal Court of Chicago; the Hon. Hbank H. Graham, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 30, 1919.
    L. O. Cooper and C. W. Greenfield, for appellant.
    C. G. Austin, Jr., and Beverly W. Howe, for appellee.

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

      See Illinois Notes Digest, Yols. XI to XY, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Taylor

delivered the opinion of the court.

This is an appeal from a judgment for $2,500, upon a verdict in favor of the plaintiff in a suit in assumpsit against the defendant upon an indemnifying bond.

There have been two trials. Our review upon the appeal from the former judgment—which was upon a directed verdict in favor of the defendant—is in the printed reports 207 Ill. App. 483. Inasmuch as that opinion sets forth fully the nature of the cause of action and the general contentions of the parties, we shall refrain here from reciting, at large, the history of the case.

The defendant contends (1) that whatever audits and verifications the evidence shows were made, they did not satisfy the requirements of the terms of' the indemnifying bond; (2) that the suit is barred by the limitation clause contained in the bond.

The original bond was dated April 1, 1905, and by ’its terms expired April 1, 1906. It was, however, extended, by annual renewals, to and including the period of the alleged defaults which are set forth in the plaintiff’s statement of claim. Among the names of employees recited in the schedule attached to the bond was the name of one A. U. Coyer. He was scheduled as a ticket clerk in the auditor’s office at the Dearborn Station, and the amount of indemnity as to him was fixed at $2,000. In the schedule covering the period from April 1, 1912, to April 1, 1913, the reference to Coyer is slightly changed. It is as follows : ‘ ‘ Coyer A. U. Ticket Clerk Dearborn Station— $2,000.” Coyer, whose defalcation was indemnified against, was employed in the auditor’s office; had a “cage” therein and dispensed and had charge of suburban tickets and tickets or checks used in the parcel rooms at the Dearborn and Englewood Stations. He also kept account of the tickets and checks used and returned, and the amounts received therefor.

The amount of Coyer’s defalcation as set forth in a letter of July 19, 1912, and as sent by the plaintiff to the defendant, was $2,561.60, which amount was in excess of the amount for which Coyer was bonded. Paragraph 4 of the bond provides:

“That the Employer shall observe due diligence, and exercise reasonable skill, care and precaution in the examination and supervision of the books and accounts of the said employees for the prevention or detention of default, and shall also cause a competent inspection, audit and verification of their books and accounts, and for all cash, securities and property in their custody, * * * to be made at least once within every twelve months during the continuance of this bond, and as much oftener as may be required either by the by-laws, rules or regulations of the Employer, or by any written statement in that behalf made by the Employer to the Company.”

Paragraph 6 of the bond provides as follows:

“That any written answers, statements or certificates made by or on behalf of the Employer respecting the accounts, conduct, duties or methods of accounting or supervision of the said employees or any of them, furnished to the Company either prior to the issuance of this bond or to any extension thereof, or at any time during its currency, shall be held to be a warranty thereof and form a basis of this guarantee and of its continuance during any extension of the term herein mentioned, and be observed and binding as a part hereof.”

Each year, upon the renewal of the bond, a certificate was given by the plaintiff, as follows:

“I hereby certify that each of the employees * * * has, to the best of my knowledge, faithfully and satisfactorily performed his duties and promptly and correctly rendered his accounts during the past year; and that, so far as I know or believe, none of the said employees have been in arrears or default, nor are any of them now in that condition; that at the dates of last inspection and verification of their accounts, the same were found in each case correct and in proper order; and I know of nothing concerning the habits or conduct of any of said employees which should render it unadvisable to continue their guarantee.”

The cause was tried before a jury and a verdict rendered in favor of the plaintiff in the sum of $2,500, and judgment was thereafter entered for that amount together with the costs.

(1) Evidence was introduced on behalf of the plaintiff to show a proper annual inspection of the books of accounts, as required by the indemnifying bond; that there was a semiannual audit made by their traveling auditor and an annual audit made by Price, Waterhouse & Company, certified accountants. The defendant, however, insists that neither audit constituted an inspection and verification of Coyer’s accounts as required by the bond. We are not able, however, to agree with that contention. We are of the opinion that there was sufficient evidence that the plaintiff exercised, as required by the bond, “reasonable skill, care and precaution in the examination and supervision of the books of accounts” of its employees, and that there was sufficient evidence of “inspection, audit and verification of their books and accounts.” The recitation of Ford, chairman of the auditing committee, as to the purpose of the annual audit made by Price, Waterhouse & Company, certified accountants, states that it was “for the twofold purpose of verifying the assets and liabilities on December 31, 1910, and examining the cash transactions for the two years with a view to ascertaining whether or not the payments were supported by proper vouchers and the receipts have been duly accounted for, and that generally speaking the books were properly kept and the rights of the proprietary tenants respected and safeguarded.” And it follows, that an audit made with that purpose and in that way was proper evidence to submit to the jury. That annual audits actually were made is not denied. Further, the evidence of Barton, the assistant auditor for the plaintiff, is to the effect that, outside of the annual audit by Price, Waterhouse & Company, certified accountants, there was an audit—which he called a periodical check—every 6 months, made of Coyer’s accounts by the auditor of the plaintiff. It is impossible to read the evidence of Barton, concerning the annual audit of the chartered accounts and the audit verification made by Ohlinger, the traveling auditor of the plaintiff, without being convinced that there was considerable evidence tending to show that the requirements of the bond were complied with. The evidence of Barton is to the effect that he saw Ohlinger go over the entire stock of unused tickets, both suburban and parcel room, that Coyer was charged with, and that “it was to check Mr. Coyer’s account.” Ohlinger, himself, testified that “about twice a year I checked the ticket stock and all the unsold tickets and parcel tickets in possession of the company charged to this man Coyer.” The argument of counsel for the defendant would seem to lead to the conclusion that wherever an audit did not discover a defalcation—even though afterwards it turned out that it might not have been difficult to discover—it would not be a compliance with the requirements of such a bond. The maximum requirement of the bond, however, is merely that the plaintiff shall be diligent and exercise reasonable skill, care and precaution in its examination and supervision of the books and accounts, so as to prevent or detect defalcation; and, also, that a competent audit shall be made at least once in every 12 months. United States Fidelity & Guaranty Co. v. First Nat. Bank of Dundee, 233 Ill. 475. The evidence was submitted to the jury and it was instructed quite elaborately and aptly as to the law applicable, and, from the evidence and the instructions, they concluded that the requirements of the bond were complied with. We are of the opinion that there was ample evidence to justify the jury in reaching that conclusion.

Nor do we find anything in the nature of misrepresentation in the certificates which- were attached to each yearly schedule. In Whyland v. Chicago Bonding & Surety Co., 209 Ill. App. 485, the bond insured against the defalcation of a particular employee who was a cashier and bookkeeper; and in the certificate given for the renewal of the bond it was positively stated that he had honestly accounted for all money in his custody “and is not now in default to me.” In the instant case, where the plaintiff is a railroad company and the schedule attached to the bond contains the names of a large number of employees, the certificate signed by certain officers of the company and referring’ to the employees whose names were set forth, the schedule recited, “to the best of my knowledge” has correctly rendered his accounts, and “so far as I know or believe, none of the said employees have been in arrears or default,” and “that at the dates of last inspection and verification of their accounts the same were found in each case correct and in proper order,” etc. In the Whyland case, supra, the plaintiff stultified himself when he brought suit. In the instant case, that which is set forth in the certificate is entirely consistent with the present claim of the plaintiff. An annual and two intermediate audits had been made and, as far as the plaintiff knew, at the time the certificates were given, there was no default, and it was entitled to and entirely justified in giving the certificates for the renewals of the bond; and particularly as there is no charge or evidence of fraud or bad faith. The bond, which was renewed from time to time, was not concerning’ a single individual only, but undertook to insure a series of names as set forth in an attached schedule; and when a certificate was given for a renewal, it would ■ be based simply on the audits that had been made. The terms of the bond in the instant case are much narrower than in Guarantee Co. of North America v. Mechanics’ Sav. Bank & Trust Co., 183 U. S. 402. In that case it was expressly provided that if the employer became aware that the employee was engaged in speculation or gambling, the surety should be notified, and as the employer did obtain such information, and failed to notify the surety, the latter was not liable on its bond.

(2) It is further contended by the defendant that the suit was barred by the limitation clause contained in the bond. Section 13 of the bond provides that no suit shall be instituted upon the bond unless it is brought within one year from the date of discovery of the default. For a discussion of the law applicable to this contention and also concerning the pertinent facts which are involved, we refer to the language used in our former opinion when this cause was here before on review 207 Ill. App. 483.

As to instruction number 11, we are of the opinion that the court did not err in its refusal. It was the function of the jury to determine whether the negotiations in question did constitute a waiver, and it would have been manifestly improper to instruct them that “the mere pendency of negotiations * * * conducted in good faith with a view to a compromise of the plaintiff’s claim * * * was not of itself a waiver,” etc. As to instruction number 6, which was tendered by the defendant and refused, we are of the opinion that it was not justified by the evidence.

It is contended, also, by the defendant, that the trial court erred in admitting in evidence the letter of July 23, 1913. It is claimed that because it was written after the expiration of a year it was incompetent. Considering, however, the contents of the letter of April 14, 1913, which, together with an inclosed memorandum, was sent by the counsel for the defendant to the plaintiff, also the letter of June 14, 1913, sent by counsel for the defendant to the auditor of the plaintiff, and the letter of July 23, 1913, sent by the plaintiff to counsel for the defendant and the answer thereto of the same date by counsel for the defendant to the plaintiff, which latter letter contains the following: “Personally, I feel that the offer of compromise as made is as fair as you could expect in view of the facts,” we are of the opinion that the evidence offered was entirely competent.

The record shows, both as to the evidence and the instructions, that the defendant has had a fair trial; and we do not find anything, suggested by counsel or otherwise, to justify disturbing the verdict of the jury.

Finding no error ip the record the judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Eldredge

text:
    Alvin T. Brant, Administrator, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    1. Appeal and ebbob, § 541

      —what is proper way to question special findings. The way to question special findings made at the instance of a defendant is by motion for new trial, or by some other appropriate motion, and, upon failure to so question them, the facts found will be considered as proven on appeal.
    2. Master and servant, § 831*—when facts specially found by jury in death action under Federal Employers' Liability Act considered as proven. In an action for the death of a brakeman, based on the Federal Employers’ Liability Act, where death was caused by decedent colliding in the nighttime with a bridge constructed over the car on top of which he was.standing, which had a clearance of from 2 to 2y2 feet between the bottom of the bridge and the top of the car, and where “telltales” were erected at intervals to warn brakemen of the approach of the bridge, and where the jury specially found that the “telltale” furthest away from the bridge was lighted but that the nearest one was not sufficiently lighted, and that the strands of the rope of the nearest “telltale” were missing from that portion above the running board, the facts so found- were considered as proven where such findings were not questioned either by motion for new trial or by some other appropriate motion.
    3. Master and servant, § 832*—when general and special verdicts of jury in death action under Federal Employers’ Liability Act are conclusive. In an action for the death of a brakeman, based on the Federal Employers’ Liability Act, where death was caused by decedent colliding, in the nighttime with a bridge constructed over the car on top of which he was standing which had a clearance of from 2 to 2% feet between the bottom of the bridge and the top of the car, and where “telltales” were erected at intervals to warn brakemen of the approach of the bridge, the controverted questions as to whether the defective condition of the “telltale” nearest the bridge did not extend over the center of the car and was sufficient to give decedent notice of the approach to the bridge, and as to whether he was in fact warned by such “telltale,” were settled by the general and special verdicts of the jury.
    4. Master and servant, § 430

      —when question of contributory negligence is immaterial in death action under Federal Employers’ Liability Act. In an action for the death of a brakeman, based on the Federal Employers’ Liability Act, where death was caused by decedent colliding in the nighttime with a bridge constructed over the car on top of which he was standing which had a clearance of from 2 to 2y2 feet between the bottom of the bridge and the top of the car, and where “telltales” were erected at intervals to warn brakemen of the approach of the bridge, the question whether decedent could have performed his duties as efficiently and with more safety by remaining in the engine was immaterial, because under such act contributory negligence was no defense and could only be considered on the question of mitigation of damages. e
    5. Master and servant, § 304*—when servant assumes risk attributable to master’s negligence. An employee assumes a risk nominally incident to his occupation, but does not assume a risk or hazard arising from a defect which is attributable to the employer’s negligence until he becomes aware of such defect, or unless the facts and circumstances are such that he will be presumed in law to have knowledge of such defects.
    6. Master and servant, § 308*—when brakeman does not assume risk of failure to repair “telltales’’ Negligence in permitting “telltales” to become and remain out of repair so that they fail to give warning of the approach to low structures constructed over railroad tracks is not a hazard nominally incident to the occupation of a brakeman, and is not an assumed risk.
    7. Master and servant, § 698*—when risk arising out of condition of “telltales" not assumed by brakeman as matter of law. Where there was no evidence that a brakeman, who while on top of a car was killed by coming in contact with a low structure over the track, knew that the “telltale” nearest the bridge was out of repair, it would not be held as a matter of law that he assumed the hazard of its condition, which was caused by the negligence of the railroad company.

      8. Appeal and error, §§ 1523, 1543

      —when erroneous instruction on credibility of witnesses will not reverse. An instruction stating that the jury are the judges of the credibility of the witnesses and of the weight to he given to their testimony, and that they were not bound to take the testimony of any witness as absolutely true, and should not do so, if they are satisfied from all the facts and circumstances proven that such witness was mistaken, or that for any other reason his testimony was untrue or unreliable, although not stating a correct rule of law, could not have misled the jury and was not reversible error in view of other instructions as set forth.
    9. Death, § 48*—when exclamations indicating pain admissible in action under Federal Employers’ Liability Act. Under the Federal Employers’ Liability Act as amended, providing that in an action for wrongful death the administrator may recover for conscious pain the deceased underwent during the period of time between the injury and his death, it was not error to admit testimony as to exclamations made by the decedent immediately after his injury, indicating pain and distress.
    10. Master and servant, § 622*—when admission of evidence in action for death of brakeman as to condition of “telltale” not error. In an action for the wrongful -death of a brakeman by coming in contact with a low structure over the car on which he was standing, where it was conceded that the “telltale” nearest such bridge was out of order, it was not error to admit testimony as to the condition of another “telltale” located further away, as decedent had the right to rely upon both.
    11. Master and servant, § 622*—when admission of evidence in action for death of brakeman as to condition of “telltale” not error. In an action for the wrongful death of a brakeman by coming in contact with a low structure over the car on which he was standing, where it was conceded that the “telltale” nearest such bridge was out of order, it was not error to admit testimony as to the condition of another “telltale” located further away, as such “telltales” constituted a part of the physical condition of the surroundings in the vicinity of the approach to the bridge.
    12. Master and servant, § 332*—when risk of being struck by bridge assumed by brakeman. In an action for the wrongful death of a brakeman by coming in contact with a low structure over the car on which he was standing, where it was conceded that the "telltale” nearest such bridge was out of order, and where there was testimony that the other “telltale” was also out of order, and that decedent knew that he was approaching the bridge under which he could not pass with safety while standing on top of the car, but also knew of the existence of "telltales,” he did not, as a matter of law, assume the danger of the defective condition of the “telltale," where there is no evidence that he knew of such defective condition, but he assumed the danger of the bridge guarded against by the maintenance of the “telltales.”
    Appeal from the Circuit Court of Pike county; the Hon. Hakry Hiobee, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed October 22, 1918.
    Rehearing denied April 3, 1919.
    Bracken & Young and William and Barry MuM-ford, for appellant; Silas H. Strawn, of counsel.
    Anderson & Matthews, for appellee.

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

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

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Appellee, as administrator of the estate of Mayo Earl Sutton, deceased, brought an action on the case against appellant to recover damages for the death of said deceased. The trial resulted in a verdict finding appellant guilty and assessing the damages at the sum of $8,500. Judgment was rendered on this verdict, which is sought by this appeal to be reversed. The suit is based upon the Federal Employers’ Liability Act, and was tried upon the issues presented by the third, fourth, fifth, seventh and eighth counts of the declaration. In the third count it is charged, in substance, that on August 29, 1916, appellant was a common carrier engag'ed in interstate commerce, and possessed an ice house at the station of Boodhouse of the length of, to wit, 526 feet, situated immediately north of a certain switch track called track No. 7; and was also possessed of a certain wooden structure, bridge or runway, running south from said ice house over and above said switch track to a platform immediately south of said track, the said platform running east and west along the line of said track, of the length of, to wit, 850 feet; that said switch track ran easterly and westerly between the ice house and platform under the wooden bridge aforesaid; that on said date appellant operated said interstate train of cars loaded with produce, meats, etc., in an easterly direction to and upon the aforesaid switch track for the purpose of stopping said train on said track running under said woodenbridge so that ice conld be taken off said platform and loaded into the top of said refrigerator cars; that Mayo Earl Sutton, appellee’s intestate, was engaged by appellant as a brakeman on said car; that said bridge or runway between said ice house and platform was maintained by appellant at a height not sufficient above said track and trains passing thereon to permit persons operating said trains safely to perform their duties while passing under and upon said track at said place; that said bridge or runway was highly dangerous to the servants of appellant operating its cars and trains thereon while performing their ordinary duties; that on said date said deceased was then and there engaged in assisting and operating and running said train on said switch track and under, said bridge or runway; that it was the duty of appellant to give warning to its brakemen of the approach of said bridge or runway over said track No. 7 by means of “whipping straps” or “telltale's,” or by some other suitable device or means, and that appellant in attempting to comply with its duty in that regard had constructed and maintained, and for a long time prior to said date, a “whipping strap” or “telltale” approximately 100 feet west of said bridge or runway; that having so attempted to give warning in that manner it was the duty of appellant to keep and maintain the said “whipping strap” or “telltale” in good and sufficient condition so as to apprise and warn brakemen and other employees of appellant of the approach of said bridge or runway; that appellant, not regarding its duty in that behalf, negligently and carelessly on the date aforesaid, and prior thereto, permitted the said “whipping strap” or “telltale” to become broken, defective and out of repair so that the same did not on said date give said deceased notice and warning of his approach to said bridge or runway; that on said date, and at, to wit, 4 o’clock a. m., and before it was daylight, while said train was being switched and moved eastward for the purpose of setting down said refrigerator cars at and along said platform, to be iced, said deceased at said time climbed on top of one of said cars in the performance of his duties as such brakeman for the purpose of giving and receiving the signal to stop said train at a proper place along said platform to ice said cars; that said Sutton mounted on the top of said train more than 100 feet westward from said bridge or runway ; that said Sutton did not have knowledge that the aforesaid “whipping strap” or “telltale” was defective or out of repair; that by reason of appellant’s failure to keep and maintain said “telltale” or “whipping strap” at said time in good and sufficient condition to apprise and warn said Sutton of his near approach to said bridge or runway, said Sutton did not have notice of the approach of said train to said bridge or runway, and by reason thereof, while in the performance of his duties, as aforesaid, said Sutton was then and thereby struck and injured by said bridge or runway, and killed, etc.

The fourth count is similar to the third count, except that it is averred therein that appellant maintained two such “whipping straps” or “telltales,” one 300 feet west of the bridge or runway, and the other 80 feet west of the same, and that each of said “whipping straps” or “telltales” was at the time broken, defective and out of repair so that they did not give said Sutton notice or warning of the approach of the bridge or runway. The fifth count is substantially the same as the third. The seventh and eighth counts are substantially the same as the fourth count.

To these counts appellant filed two pleas. The first was the general issue, and the second was a special plea, in which it was averred that said bridge or runway and the alleged condition of said “whipping straps” and “telltales” were an ordinary risk or hazard to the employment of a freight brakeman, or appellant, and that said Sutton necessarily and legally assumed all the risks incident to his employment as a freight brakeman in and about said “whipping straps” and “telltales” and in and about said bridge or runway, etc. Appellee filed a replication to this plea, in which it was averred that said Sutton did not assume the risk, etc., mentioned, but that said risks and hazards were extraordinary risks, of which Sutton had no actual or constructive notice or knowledge. To this replication appellant filed its re joiner, which concluded to the contrary. Upon these pleadings issue was joined.

At the place of the accident, track No. 7 runs east and west. Immediately north of the track was an ice house of appellant. This building was 460 feet long, 64 feet wide and 28 feet high from the ground to the eaves. Along the south side of this ice house was a platform extending south 7 feet 6 inches from the south side of the ice house and 15 feet 10 inches above the top of the rails.' Immediately south of track No. 7 was another structure, called the icing platform,' the floor of which was about 12 feet wide and 16 feet from the ground. Immediately south of the icing platform was track No. 6. Passing over track No. 7, and connecting the platform on the south side of the ice house with the icing platform, was the bridge in question, the bottom of which was about 15 feet and 10 inchqs above the top of the rails of the track. This bridge was used for the purpose of carrying the ice from the ice house across the tracks to the icing platform. The ice was then placed in refrigerator cars needing the same. The 'clearance between the under side of the bridge and the tops of the refrigerator cars in question was from 2% to 3 feet. Stretching across the track at a point 62 feet west of the "bridge was a “telltale” consisting of numerous strands of rope hanging at intervals from the top thereof to warn brakemen of the bridge in question. A similar “telltale” was located over track No. 7, 300 feet west of the bridge. The lower ends of the strands of the “telltales,” when in proper condition, extend downward to a point about 4 feet above the top of an ordinary Swift refrigerator car. Distributed at irregular intervals under the eaves along the south side of the ice house were 10 single electric lights. Near the west end of the icing platform was a cluster of 4 electric lights. South of track No. 6, and at distances varying from 17 feet 4 inches to 26 feet 7 inches south of the south side of the icing platform, were 4 clusters of electric lights, each cluster consisting of, 4 lamps. These clusters varied from 119 to 195 feet apart and extended from west to east. About 52 feet west of the west end of the ice house, and north of track No. 7, was another cluster of 4 lamps. These was evidence tending to show that the illuminating power of these lamps became more or less diminished in course of time by the weather and the smoke of passing trains, and that they were regularly cleaned twice a year, and there was evidence tending to show that they had been cleaned about 40 days prior to the date of the accident. Switch track No. 7 connects with the main track about 550 feet west of the ice house.

On July 7, 1916, Sutton, appellee’s intestate, made a written application for a position as freight brakeman, and he was given authority to ride on freight trains as a student brakeman. He made several trips as such, riding on the engine each time. He became an extra brakeman on July 14, 1916, and a regular brakeman on July 24, 1916. There is evidence tending to show that Sutton, while a student brakeman, was on several trains which were iced on track No. 7 at the said icing plant, and that he had been upon track No. 7 on regular trips” as a brakeman a number of times. The evidence shows that head brakemen on trains which passed under this bridge would sometimes ride in the engine until after the bridge was passed and sometimes would ride on top of the freight car, on which latter occasions they would ride lying down on the running board on top of the car or sit down and lean forward while passing under the bridge. When Sutton was examined by the train master prior to his appointment as head brakeman, he was informed by the latter of the bridge located over track No. 7 at the Roodhouse icing plant, and also was informed that there were “telltales” to warn brakemen riding on the ears. There was no dispute in the evidence but that Sutton knew of the location of the bridge and also of the “telltales.” The proofs also show, and it is conceded by appellant, that several strands in the “telltale” 300 feet west of the bridge were either missing or in such a bad state of repair that an open space of about 3 feet was left in the center of the “telltale.” It is also conceded that a number of strands were missing from the “telltale” nearest to the bridge, leaving an open space therein of at least 24 inches. But it is insisted by appellant that this open space in the latter “telltale” was not directly above or over the running board of the car, but to one side thereof. The evidence was conflicting as to whether the open space in the “telltale” nearest the bridge was immediately over the running board on top of the car or whether it was to one side thereof.

' Appellant on the trial asked for five special verdicts upon special interrogatories of fact. The jury found as to these interrogatories as follows: (1) that at and prior to the time of receiving his injury Sutton knew of the location of the bridge at the icing plant; (2) that he knew he could not safely pass beneath the bridge while standing erect upon the refrigerator car; (3) that the “telltale” over track No. 7, which was furthest from the bridge, was so fully lighted at the time as to have been easily and plainly seen by Sutton from the top of the car on which he was riding when injured; (4) that the “telltale” over track No. 7, which was nearest to the bridge, was not sufficiently lighted at the time of the accident to have been easily and plainly seen by Sutton from the top of the car on which he was riding when injured; (5) that the strands of rope of the “telltale” nearest the bridge in question were missing from that portion of said “telltale” immediately above the running board of the car upon which said Sutton was riding at the time he collided with the bridge in question. No motion was made in the court below to have any of these special findings set aside, nor were they mentioned as grounds for a new trial. The way to question these findings of fact made at the instance of appellant was by motion for a new trial, or by some other appropriate motion in the trial court. Pennsylvania Coal Co. v. Kelly, 156 Ill. 9; Empire Laundry Machinery Co. v. Brady, 164 Ill. 58; Voigt v. Anglo-American Provision Co., 104 Ill. App. 423; affirmed 202 Ill. 462. In this court, therefore, it must be considered as proven that the strands in the “telltale” nearest to the bridge with which Sutton collided, which would ordinarily hang over the center of running board on top of the car on which he was riding, were missing; also that there was not sufficient light at the time for him to easily and plainly see the “telltale.” Shortly after the engine and train left the main line and entered switch track No. 7, Sutton left the engine in which he had been riding and proceeded to tin ' m of the first car next to the engine, which was a iowift refrigerator car. There is evidence tending to show that n stood on the running board on this ear with his back towards the east, or the bridge in question. At this time the car on which he was standing had not passed the first “telltale,” that is, the one 300 feet west of the bridge. A long train of cars had pulled in on track No. 6, and the rear cars barely cleared track No. 7, where the two tracks connected. As the train on which Sutton was riding pulled in on track No. 7, the train master told the engineer and the others in the cab of the engine, among whom was Sutton, to look out for the cars on that track. There is also evidence that when the car on which Sutton was standing had reached a point between the two “telltales,” about 80 feet west of the bridge, he received a signal from the witness Sink to spot the head car for icing, and at that time Sutton was standing near the west end of the first car next to the engine on the running board and facing the rear of the train, with his back to the bridge and the “telltale.” There was also evidence tending to show that the smoke from the engine as the latter entered the narrow space between the ice house and the icing platform would more or less obscure sight of the “telltale” nearest the bridge. The accident happened about 4 o ’clock in the morning. Sutton was struck by the bridge, thrown between the cars and both legs severed from his body and both arms were almost severed therefrom. He died about an hour and a half after he received the injuries.

Two defenses to the action were urged in the court be-low and are presented here. First, that the defective condition of the “telltale” nearest the bridge did not extend over the center of the car on which Sutton was standing, and was sufficient to give him warning of the approach to the bridge, and that he was in fact warned by said “telltale.” These were controverted questions of fact, which were settled by the general and special verdicts of the jury. The second defense, and the one most strenuously urged, is that the bridge was a dangerous condition-existing in the yards of appellant, and was an ordinary hazard which Sutton assumed by his employment. It is very urgently maintained that the rules of the company did not require him to be on top of the car at the time and place in question; that he had no duty to perform which required him to be there; and that he was guilty of contributory negligence in going upon the top of the car at that time. There can be no question but that Sutton went on top of the car to perform his duties as head brakeman. Whether he could have performed those duties as efficiently and with more safety by remaining in the engine is immaterial because, under the Federal Employers ’ Liability Act, contributory negligence is no defense and can only be considered on the question of mitigation of damages. Assumed risk, however, under said act, is a defense. Seaboard Air Line Ry. v. Horton, 233 U. S. 492 [8 N. C. C. A. 834]; Kanawha & M. Ry. Co. v. Kerse, 239 U. S. 576; Central Vermont Ry. Co. v. White, 238 U. S. 507 [9 N. C. O. A. 265]; Kendrick v. Chicago & E. I. R. Co., 188 Ill. App. 172. Sutton knew that he was approaching the bridge in question, under which he could not pass with safety while standing upon the top of the car. But he also knew that appellant maintained, and had maintained for a long time prior.thereto, “telltales” which would warn him in time to avoid the danger. He did not assume the danger of the bridge alone, but he assumed the danger of the bridge guarded against by the maintenance of the “telltales.” He had a right to rely upon the “telltales” to give him timely warning of the danger of the bridge. This was the hazard which he assumed, and not the hazard that appellant might negligently permit the “telltales” to become so out of repair that they would fail to give the necessary warning. An employee assumes a risk nominally incident to his occupation, but does not assume a risk or hazard arising from a defect which is attributable to the employer’s negligence until he becomes aware of such defect, or unless the facts and circumstances are such that he will be presumed in law to have knowledge of such defects. Gila Valley G. & N. Ry. Co. v. Hall, 232 U. S. 94; Chesapeake & O. Ry. Co. v. Proffitt, 241 U. S. 462. Nor is it his duty to exercise care to discover danger not ordinarily incident to his employment, but which results from the employer’s negligence. Seaboard Air Line Ry. v. Horton, supra; Gila Valley G. & N. Ry. Co. v. Hall, supra; Chesapeake & O. Ry. Co. v. Proffitt, supra. Negligence in permitting “telltales” to become and remain out of repair so that they fail to give warning of the approach to low structures constructed over railroad tracks is not a hazard nominally incident to the occupation of a brakeman, and is not an assumed risk. West v. Chicago, B. & Q. Ry. Co., 179 Fed. 801; Hines v. New York Cent. & H. River R. Co., 78 Hun (N. Y.) 239; Harrison v. New York Cent. & H. River R. Co., 127 N. Y. App. Div. 804; Whitehead v. Wisconsin Cent. Ry. Co., 103 Minn. 13. There is no evidence in this case that Sutton knew that the “telltale” nearest the bridge was out of repair, and it cannot be held as a matter of law that he assumed the hazard of its condition, which was caused by the negligence of appellant.

It is claimed by appellant that the giving of the 7th instruction on behalf of appellee was reversible error. This instruction is as follows: * “You are the judges of the credibility of the witnesses, and of the weight to be attached to the testimony.of each and all of them; and you are not bound to take the testimony of any witness as absolutely true, and you should not do so, if you are satisfied from all the facts and circumstances proved on the trial, that such witness is mistaken in the matters testified to by him, or that for any other reason his testimony is untrue or unreliable.” It is conceded that this instruction does not state a correct rule of law because by one interpretation thereof the jurors might be led to believe that they were not hound to take the testimony of any witness as absolutely true, if they were satisfied, “for any other reason” than that presented by the facts and circumstances proved on the trial, his testimony was untrue or unreliable. Counsel for appellant insist that the jury were not confined to such “other reason,” as appears from the evidence, but is broad enough to justify the jury in disregarding the testimony of a witness for any reason which, to their minds, or to their prejudices, whether raised by an unjustifiable attack by counsel, or otherwise, rendered the evidence unreliable. In view of the other instructions given, the jury could not have been misled by this instruction.

The 16th instruction given on behalf of appellant was as follows: “It is the duty of the jury to follow the law as laid down by the court and to apply such rules of law to the evidence as given by the witnesses on the stand in this suit. It is your duty to find a verdict based solely on the law and the evidence, and not to allow yourselves to be influenced by any feeling or sympathy or bias or any consideration whatsoever other than the law and the evidence. You are instructed that no remarks, statements or claims of counsel made either in argument, or otherwise, in the progress of this trial are to be regarded by you as evidence.

“The evidence consists only and solely of those facts which have been testified to upon the witness stand, and the exhibits offered and received as evidence in the case.”

The 20th instruction given on behalf of appellant is as follows: “It is the duty of the court to state to you, in the form of instructions, the principles of the law by which this case is to be tried but the jury are the sole judges of these facts in dispute between the parties.

“As to the facts in dispute in this case, or as to what facts the evidence proves or fails to prove, the court does not intimate any opinion whatever, either in these instructions, or by any act or word during the course of the trial, but the decision of the facts is the exclusive province of the jury. You are, of course, to decide these facts from a fair, impartial, and candid consideration of all the testimony, facts and circumstances in proof, and you should not go outside of or beyond the facts proven and such reasonable deductions as you may draw from the' facts proven, in considering and deciding the facts. You should not wilfully, or without cause appearing from the evidence, throw aside or disregard the testimony of any witness in the case, but you should fairly and impartially recall to your minds and memories, so far as is possible, all the testimony of all the witnesses on both sides, and you should give to each bit of oral testimony, and to each fact and circumstance proved, such weight as you believe the same fairly entitled to receive. If any attorney in the case has made any statement, in argument, which is not based on a fair consideration of the evidence, you should disregard the same, and your decision of the facts should be based on the evidence, and on reasonable deductions arising out of the evidence. ”

In the 21st instruction given on behalf of appellant ■ the jury are informed that it is their duty to follow the instructions of the court as to the law in the case and to render their verdict upon the evidence which has been offered before them, and upon nothing else; that they should not go outside of the evidence to hunt up reasons or grounds upon which to base a verdict; that if counsel on either side had made appeals to their sympathies or prejudices, or statements in the arguments, which are not supported by the evidence, they should wholly disregard the same and not allow such statements to influence them in any degree in arriving at their verdict.

By the 25th instruction given for appellant the jury were told that while they were the judges of the credibility of the witnesses, they had no right to disregard the testimony of a witness sworn on behalf of the defendant simply because such witness was, or is, an employee of the defendant, but that it was their duty to receive the testimony of such witness in the light of all the evidence, the same as they would receive the testimony of any other witness, and to determine the credi-' bility of such employees by the same principles and tests by which they would determine the credibility of any other witness. The above instructions clearly and definitely limited the jury to the evidence in the case in determining the credibility of the witnesses, and cured the error in said instruction No. 7 given for appellee. Substantially the same instruction was given in the case of Taylor v. Felsing, 164 Ill. 331, and also in the case of People v. Arnold, 248 Ill. 169, and in each of these cases it was held that the giving of such an instruction was not necessarily a reversible error. In view of the above mentioned instructions given on behalf of appellant, it was not reversible error to give appellee’s instruction No. 7. •

The 3rd instruction given on behalf of appellee was also complained of. What has already been said in regard to the assumption of the risk by Sutton of the negligence of appellant in permitting the “telltales” to become in defective condition disposes of the criticism to this instruction.

Several witnesses were permitted to state what Sutton said immediately after his injury. These statements were to the effect that he asked the doctor to give him chloroform and put him out of his trouble; that his "leg was hurting him; to tell his wife and mother good-bye; and occasionally, “Oh, my Grod!” The federal act as amended provides that in an action for wrongful death the administrator may recover for the conscious pain and suffering, if any, which the deceased underwent during the period of time between the injury and his death. No statements were admitted which were prejudicial to the rights of appellant.

It is next urged that all the testimony in regard to the “telltale” situated 300 feet west of the bridge should have been excluded because “the question as to whether the strands of that ‘telltale’ were in place cannot possibly be held to be material upon the issue of whether or not Sutton. received any warning from the ‘telltale.’ ” Appellant had erected these two “telltales.” The only purpose and object which they could perform would be to warn employees working on top of the cars of the proximity of the bridge in question. Appellant evidently thought that the dangerous condition which existed would be better provided against by maintaining two “telltales” instead of one. .However, two “telltales” were maintained, and Sutton had a right to rely upon each of them. They also constituted a part of the physical condition of the surroundings in the vicinity of the approach to the bridge, and such evidence was admissible for that purpose. There was no error in admitting this evidence.

Several other objections are made to the admission of evidence, which we think are unfounded. There was no reversible error made in the rulings of the court on remarks of counsel for appellee in his argument to the jury.

The judgment of the Circuit Court is affirmed.

Affirmed.