author: Wall, P. J.

text:
    Chicago and Alton Railroad Co. v. Abraham Bock.
    1. Verdict, "wren undisturbed .—Where the jury are properly instructed as to the legal questions involved and the conditions essential to a recovery, although they may have misconceived or misunderstood the evidential value of some of the facts in proof, the verdict will not be disturbed.
    2. Evidence—Negligence.—Where animals were struck by a train at five o’clock in the morning of October 22d, and the question was as to the care exercised by those in charge of the train. Held, competent to permit witnesses to give their experience as to how far a horse could be seen at that time.
    Appeal from the Circuit Court of Logan county; the Hon. G. W. Herdman", Judge, presiding.
    Opinion filed August 20, 1885.
    Messrs. Blinn & Hoblit, for appellant;
    that evidence of experiments made by witnesses two years after the accident^ at a different place, as to the distance an object could be seen at five o’clock in the morning, was incompetent, cited Yates v. People, 32 New York, 509; Aldrich v. Pelham, 1 Gray, 511; Collins v. Dorchester, 6 Cushing, 396.
    The distance an object could have been seen in front of an engine at the time of the accident was an important element in determining whether the company was guilty of negligence, and incompetent evidence having been admitted to a point material to the issue, the verdict should be set aside: Aldrich v. Pelham, 1 Gray, 511; C. & M. Ry. Co. v. Moranda, 108 Ill. 576; McCoy v. People, 71 Ill. 111; Richardson v. Kelly, 85 Ill. 491; Robertson v. Brost, 83 Ill. 116.
    Messrs Beach & Hodnett, for appellee ;
    as to negligence, cited T. P. & W. R. W. Co. v. Ingraham, 58 Ill. 120; R. R. I. & St. L. R. R. Co. v. Irish, 72 Ill. 404.
   Wall, P. J.

The appellee is the owner of a pasture adjacent to the railroad track of appellant. In the pasture were a number of horses, which, escaping during the night time, went upon the track, and some of them were so injured by a train or trains passing over the road as to render them worthless.

To recover for damages thus sustained this suit was brought. A trial by jury resulted in a verdict for plaintiff, and a motion for new trial being denied, judgment was rendered accordingly. The record is brought here by appeal. We are asked to reverse the judgment upon the ground, as alleged, that the evidence does not support the verdict. It was stipulated at the trial that the animals got upon the track without the fault of plaintiff or defendant, and it follows that the only question is as to the alleged negligence of the defendant by its servants in the management of its trains. There is no dispute as to the law in this respect, and it may be briefly stated thus : That it was the duty of defendant to exercise ordinary care and vigilance, in running its trains, to avoid injuring animals so being on the track, and that if it failed to exercise such care and vigilance, and by reason of such neglect and without fault of plaintiff the injury occurred, then defendant is liable, and it devolves upon the plaintiff to establish such negligence by a preponderance of evidence. There is no direct testimony as to when or how the animals were injured, but we are quite well satisfied, from the circumstances in proof, that they were struck by a train going north, at or about five o’clock in the morning of October 22,1882. At least there is evidence from which this conclusion may be drawn. The evidence from which appellee would deduce the charge of negligence consists mainly of the tracks and marks made by the horses as they were running, and as they were dragged along and finally pitched from the road bed. Assuming that the injury was inflicted by a train going in the direction and at the hour just stated, from the distance the horses ran, apparently at great speed and in much confusion, it is argued that the persons in charge of the engine had ample opportunity for seeing them and avoiding the injury. On the other hand the employes of the defendant running trains that night all testify to their carefulness, and those running north say that though exercising proper vigilance they saw no horses on the track. It is shown that a train going south did strike one horse near this point, and those in charge of that train testify to such circumstances of care as would exonerate the defendant as to that animal. There is considerable evidence as to the grade of the track, the condition of the atmosphere that morning, the distance an object like a horse could be seen at the hour and time of year in question, and upon various collateral matters not necessary to be stated. The question of fact has been well and fully argued by counsel, and has received the very attentive consideration of the court. An extended discussion of the evidence would serve no useful purpose, and we deem it unnecessary to do more than to announce the conclusions we have reached. If the facts and circumstances detailed by the plaintiff’s witnesses were true, it is not unreasonable to say that the servants of the company might, in the exercise of ordinary care, have avoided inflicting the injuries in question, and giving due weight to the testimony offered by the defendant and making proper allowance for the judgment and discrimination which the jury were warranted in exercising when they came to consider all the evidence before them, we are not able to say that the circuit court erred in refusing a new trial. True, no one saw the occurrence, and the burden of proving negligence is upon the plaintiff; yet this may he made out quite as well by the circumstances as by direct proof. 1 Gr. Ev., Secs. 13 & 15. The jury were properly instructed as to the legal questions involved and the conditions essential to a recovery, and while they may have misconceived or misunderstood the evidential value of some of the facts in proof, we can not, under the well known rules applicable in such cases, see our way clear to disturb their verdict. It is urged also that the circuit court erred in permitting witnesses to give their experience as to how far a horse could be seen at five o’clock in the morning of October 22d. Several witnesses were allowed to so testify. As already stated, we think the animals were struck by a train going north about that hour, and that the main question of difficulty is as to the care exercised by those in charge of this train. The inference of negligence would be strong or weak in proportion as the opportunity for observation was perfect or imperfect. If there was abundant light then it might easily be inferred from the indications afforded by the tracks and the marks along the road bed that there was great negligence; if the light was insufficient this inference would be of less force and so on. It would be competent for a juror to bring to his aid, in considering the other testimony in the case, his-own experience in this regard, and the first question he would ask himself would be as to how far and how well one can see at that hour in the morning; and were there no testimony as to the experience of others in making observations at that time, he might well weigh the facts proved in the light of his own experience. We entertain no doubt that such evidence is competent. It tends to prove the issue. It may be conceded that its value is uncertain, since no witness could have been placed under precisely the same conditions as the engineer and fireman whose duty it was to keep a lookout on that morning. It is not expert testimony. It is rather the proof of an important fact necessary to be known in order to place a proper estimate upon the other facts in proof. An authority referred to by counsel for appellant and mainly relied upon is a Hew York case, whose facts and circumstances are unlike those of the present case, and we deem it not in point. We see no such, error in the record as would justify a reversal, and therefore the judgment of the circuit court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Pleasants, J.

license: Public Domain

text:
    Charles H. Voorhees v. George W. Reed.
    1. Promise—Consideration.—Action, or the refraining from action, by the promisee, if to his own disadvantage, though of no benefit to the promisor, may constitute a sufficient consideration to support the promise.
    2. Consideration insufficient.—If the act done or refrained from is forbidden by good morals, or by the common law, or the express provision or general policy of a statute in force, such doing or refraining would not constitute a legal and sufficient consideration for the promise.
    3. Same.—Where certain hogs belonging to appellee were being treated by a doctor, for hog cholera, and appellee told appellant, who accompanied the doctor, that he was afraid the forty in question were going to die and he thrught he had better ship them, and appellant said, “ Yon leave the hogs there for the five days and I will give you $25 for every one that dies.” Held, that if these hogs or any of them were so diseased, and appellee had reasonable ground to suspect it, he was forbidden both by good morals and by the statute to ship them, and in such case his refraining from so doing would not be a sufficient consideration to support appellant’s promise.
    4. Damages.—If an agreement be unreasonable and unconscionable, hut not in such a way or to such a degree as to imply fraud, though courts of law will not declare the contract void, they will give only reasonable damages to the plaintiff who seeks compensation for the breach of it.
    Appeal from the Circuit Court of Jersey county; the Hon. G. W. Herdman, Judge, presiding.
    Opinion filed August 20, 1885.
    Messrs. Hamilton & Slaten, and Messrs. Brown & Kirby, for appellant.
    Mr. A. A. Goodrich and Mr. James E. Ward, for appellee.
   Pleasants, J.

Assumpsit by appellee against appellant, brought before ajustice of the peace and appealed to the circuit court, where plaintiff obtained a verdict for $175 damages, being the full amount claimed. Defendant moved for a new trial upon the grounds, among others, that the' verdict was against the law and the evidence and that improper instructions had been given for the plaintiff; but the court overruled the motion and rendered judgment upon the verdict, for the plaintiff, for the damages so assessed and for costs; from which judgment the defendant took this appeal, and here assigns for error the giving of said instructions and the overruling of said motion.

It appears that the parties were old acquaintances residing near Jerseyville, and engaged in farming and in raising, buying and shipping live stock. In December, 1883, hog cholera prevailed in the neighborhood and one Dr. Godfrey wras treating for it. He boarded with appellant, who also drove him about and introduced him, for-which services he received from the doctor two dollars per day, but had no interest in his contracts or business.

Appellee had on his place 107hogs, and on Tuesday, the 18th of said month, put up ninety of them for treatment by the doctor, with whom he had made a contract therefor on the day before, for five days, at twenty cents per head. On that morning the doctor, assisted by appellant and the hired man of appellee, separated these hogs into two lots, of fifty and forty respectively, and proceeded with his treatment. Appellee testifies that on the morning of Thursday, the 20th day of the month and the third of the treatment, he told appellant that he believed he had better ship the lot of forty—that he was afraid they would die; that appellant thereupon said to him you leave the hogs there for the five days and I will give you $25 for every one that dies” to which he replied, they can remain there for the five days if that is your guaranty,” and appellant said “all right;” that ho did leave them there and continued to care for them, feeding his own oats and corn until the following Monday, when he shipped all of those surviving that he considered fit; that seven had died in the meantime—one on Thursday night, one on Friday, two on Saturday, and three on Sunday night; that they averaged about two hundred pounds in Aveight and Avere worth §5.50 per hundred.

It Avas on this alleged promise that the suit was brought and for these seven hogs that the recovery was had.

Appellee’s two hired men corroborated him as to the prom, ise, but appellant positively denied it, and Ave see no Avay of reconciling the conflict except by the supposition, which finds some warrant in reason and the circumstances, that he used the language, in substance, attributed to him, but soineAvliat thoughtlessly, as only a mode of expressing his confidence in the skill and success of the doctor, and therefore did not remember or recognize it Avhen presented as an actual agreement to pay more than double the value of the property upon a contingency not altogether unlikely to hapjien, and without the possibility of benefit to himself if it should not.

There Avas also a conflict of testimony as to the condition of the hogs at the time of their separation and at the time of the alleged promise. Appellee’s hired man says, “ They separated the fat ones from the poor ones, and the sick ones from the Avell ones,” and that “ they said the forty were not diseased.” Appellant says fifty of them were sick, forty of them seemed better and Avould eat. Godfrey says, “Hot one of them Avas Avell.” Medicine Avas given to all, and though appellee speaks of that given to the forty as “ preventative,” and of that giAren to the fifty as “ curative,” no other Avitness alludes to any such distinction. Only seArenteen or eighteen of the thirty-three then surviving were shipped or considered fit for shipment on the 22d. The others all died on the place.

On the part of the plaintiff the court instructed the jury “ that the question whether any of the forty hogs were diseased Avith cholera or not is not involved in this case * * * and the jury should give to such question no consideration.” The consideration for the promise sued on certainly was in qxiestion. It Avas claimed to be the plaintiff’s refraining from shipping those hogs when he proposed to ship them. If it was insufficient the verdict was wholly unsupported.

There is no doubt that action or the refraining from action by the promisee, if to his own disadvantage, though of no benefit to the promisor, may constitute a sufficient consideration to support the promise, and will, provided there be no other or further reason preventing it. The instructions given for the plaintiff upon this point (Nos. 1, 4, 6,7) omitted the qualification which the evidence here required. If the act done or refrained from was forbidden by good morals, or by the common law, or the express provision or general policy of a statute in force, such doing or refraining would not constitute a legal and sufficient consideration for the promise. Munsell v. Temple, 3 Gilm. 96; Henderson v. Palmer, 71 Ill. 579. So also if the promisee was at the time under a legal obligation, independent of the promise—whether imposed by good morals, the common law, the terms or policy of a statute, or a valid and subsisting contract—to do or refrain, as the case might be, such doing or refraining would not suffice to support the promise. One can not enforce an agreement to pay h m for what he is otherwise legally bound or forbidden to do. 1 Parsons on Cont. 437 (5th and 6th Eds.); Hennessey v. Hill, 52 Ill. 281; Callagan v. Hallett, 1 Caines, 104; L’Amoreaux v. Gould, 3 Seld. 349; Smith v. Bartholomew, 1 Metc. 276; Stilk v. Myrick, 2 Campb. 317; Collins v. Godfrey, 1 B. & Ad. 950.

We hold that the putting upon the market of food animals known to be diseased, is forbidden by good morals and by the policy of the statute which declares it criminal to sell or offer to sell or keep for sale the flesh of any such animal. R. S. Ch. 38, § 7. If then these hogs or any of them were so diseased, and appellee had reasonable ground to suspect it, he was thus forbidden to ship them. In that case, therefore, his refraining from so doing would not be a sufficient or valid consideration for a promise to pay him for it, and such promise, if made, would be void.

The instruction quoted withdrew from the consideration of the jury all the evidence touching the fact of disease and of appellee’s knowledge of it; for if the fact of disease was not in question his knowledge of that fact could not have been. There was evidence tending to establish both, and the jury should have been allowed to pass upon its effect. We are in-dined to hold also that in any view the jury might have taken of this evidence the damages assessed were excessive. The agreement, if valid, was unreasonable and unconscionable. According to the testimony of appellee himself the hogs "were worth only $77. The promise in the nature of an insurance without any premium therefore, was to pay considerably more than double their value. “ If an agreement be unreasonable or unconscionable, but not in such a way or to such a degree as to imply fraud * * * though courts of law will not declare the contract void they will give only reasonable damages to the plaintiff, who seeks compensation for the breach of it.” 1 Parsons on Cont. 437, citing Cutler v. How, 8 Mass. 257; Cutler v. Johnson, Ibid. 266; Baxter v. Wales, 12 Id. 365.

For the error above indicated the judgment of the circuit court will be reversed and the cause remanded.

It is perhaps proper to add, with reference to another trial, that in our opinion several of the instructions given for the defendant were also erroneous. We find in the record no evidence tending to show that Godfrey had undertaken to prevent or cure the disease as to any of the hogs, and therefore see no case for the application of the Statute of Frauds; nor do we find any tending to prove that appellee violated the agreement by shipping on the 24th of December. The “ five days ” in question extended from the 18tli to the 22d, both inclusive. The qualification at the end of Ho. 4 was wrong, and Ho. 5 we think inapplicable and based on a misconception of the fact.

[Reversed and remanded.


text:
    Isaac Loose v. William C. Wood et al.
    Interest.—As nothing was due upon appellant’s promise until he was in default, it was error to charge him with interest from its date.
    Appeal from the Circuit Court of Sangamon county; the Hon. C. S. Zane, Judge, presiding.
    Opinion filed August 20, 1885.
    Messrs. McGuire, Hamilton & Salzenstein, for appellant.
    Messrs. Bradley & Bradley and Mr. Joseph M. Grout, for appellees.
   Pleasants, J.

Appellees, who were plaintiffs below, recovered judgment on a verdict which the court refused to set aside, for §377.15 damages and costs.

Appellant's daughter was owing them for rent of a store and him for money lent. He was secured in part by mortgage upon a portion of the goods on the demised premises. They claimed that upon their threatening to distrain he promised that if they would allow him, with her consent, to remove the goods and dispose- of them at private sale, he would pay the rent due, which was stated to be $541.75, after paying two or three hundred dollars of commercial indebtedness out of the proceeds. He did remove and afterward sell them on time, taking the purchasers’ notes for $1,800, which had been paid in full except $400; but he denied the promise.

The only error we find in the record is the instruction to the jury, that “ if they believe from the evidence that the defendant, to protect his own interest, promised to pay Mrs. Ide’s rent as claimed, then he is liable for the same; and the jury will find for the plaintiffs in such sum as they find was then due, with interest from that time at the rate of six per cent, per annum, if they further believe defendant received money sufficient from the sale of the goods.”

Appellant’s liability, if any, arose, not upon the lease, nor upon a settlement of accounts, for there were no accounts between him and appellees, but upon his express promise. That Avas verbal only, and to pay a definite sum then ascertained or to be ascertained, being the amount then due from Mrs. Ide for rent, without any mention of interest thereon. We hardly think this such an indebtedness of appellant as is contemplated by the provision of the statute Avhich alloAVS interest on the balance found due upon a settlement of accounts between the parties. West Chicago Alcohol Works v. Sheer, 104 Ill. 586, And, further, the promise did not bind him to pay anything until he received the proceeds of the sale of the goods over and above the amount of commercial indebtedness mentioned to be first paid; but it does not appear from the evidence Avhen or about when the sale was made by him, nor when the notes taken, or any of them were payable or paid, nor for Avhat sums respectively they were made. Nothing being due upon appellant’s promise until he was in default, it Avas clearly error to charge him Avith interest from its date.

It seems that some items of credit were alloAved, so that we can not determine hoAV much of the balance found by the verdict was for rent and how much, if any, for interest; but it is fair to presume that under such an instruction some interest Avas alloAved, and from the date of the promise.

For the error in giving this instruction, the judgment Avill be reversed and the cause remanded.

Beversed and remanded.


text:
    David Hutchinson v. Louis Oswald.
    Sale.— He who has no title can give none, and a sale by him, though in peaceable possession with the consent of the owner, to an innocent purchaser, will not divest such owner, unless the owner clothed the vendor with some indicium of ownership besides such possession, or exhibited the vendor or voluntarily permitted him to appear as owner, or gave him possession intending to part with the title, or did something else which would, make the assertion of his ownership an actual fraud upon the purchaser.
    Appeal from the Gircu.it Court of Greene county; the Hon. G W. IIebdman, Judge, presiding.
    Opinion filed August 20, 1885.
    Mr. Henry 0. Withers, for appellant.
    Mr. Janies E. Ward, for appellee.
   Pleasants, J.

This was an action of replevin, originally brought before a justice of the peace by appellant against appellee for the recovery of two spring wagons. The trial, on appeal, resulted in a verdict for the defendant, on which the circuit court, after overruling a motion to set it aside, rendered a judgment in his favor for a return of the property, and for $15 damages assessed for its detention, and the costs. For some years prior to January 12, 1883, one Absalom Mitchell was engaged in the sale of farm machinery at White Hall. Though not clearly shown, we infer from the evidence that ajipellant had been at one time interested with him in it. He was, however, out of regular business after June, 1882, but his relations with Mitchell were such that he continued to keep some articles of his own for use and sale at the latter’s warehouse, which he made a place of daily resort to meet old customers, collect debts, and occasionally help Mitchell in liis trades.

In July, 1882, he ordered of a salesman of the Studebaker Wagon Go., of South Bend, Bid., three spring wagons, at $90 each, on four months5 time. These were shipped to him in his own name, at White Hall, in August, and by him sent, without special permission, to the warehouse mentioned. The two here in question, which had been sent back to the factory to be put upon a wider tread and returned, were there on January 12, 1883, and then sold by Mitchell, together with the warehouse and its other contents (excepting a few articles specified as belonging to other parties), to the appellee, who, on the 13th, took possession and locked up the building; and thereupon this suit was brought.

It is here claimed in support of the judgment, that appellant had sold these wagons to Mitchell; had turned over to him the trade with the Wagon Company upon his assuming the payment of the price, which appellant denies. Evidence on both sides bearing upon this question was introduced on the trial, of the effect of which we express no opinion. How the jury found upon it, if at all, can not be ascertained from the record, since that theory of defense was ignored and quite another presented in the instructions given. One of these was, “ that if the evidence shows that the defendant found Absalom Mitchell in the peaceable possession of the wagons in controversy in this case, as the apparent owner thereof, then the said Oswald was not bound by law to inquire whether Hutchinson or anybody else but Mitchell was the owner and had authority to sell them; that the defendant had the right under the above state of facts, if proven, to purchase said wagons of Mitchell if Mitchell offered them for sale, and if he did so without any knowledge that Hutchinson had or claimed to have an interest in said wagons, then in law the defendant took by purchase a good title to said property, and Hutchinson could not, if he were the real owner, take the property from the defendant in this case.55 Others added to this hypothesis the element of Hutchinson’s consent to Mitchell’s possession, but nothing further, and were alike erroneous. An innocent purchaser from a thief, under the first, or from a mere bailee—borrower, hirer, agister or other —under the others, would hold the property stolen or bailed against the real and equally innocent owner. We understand that peaceable possession by one who is not the owner, with the consent of the owner, and with apparent ownership without such consent, is not conclusive evidence of title; that he who has no title can give none, and that a sale by him, though in peaceable possession with the consent of the owner, to an innocent purchaser, will not divest such owner unless he exhibited the vendor or voluntarily permitted him to appear as owner, or clothed him with some indicium of ownership besides such possession, or gave him possession intending to part with the title, or has done something else which would make the assertion of his ownership an actual fraud upon said purchaser. The subject has been so fully considered and clearly presented by our own Supreme Court that we deem it unnecessary to cite other authority. Fawcett, Isham & Co. v. Osborn, Adams & Co., 32 Ill. 422, et seq.; Burton v. Curyea, 40 Id. 329, et seq.; Klein v. Seibold, 89 Id. 540.

The instructions referred to were erroneous.

The judgment will therefore be reversed and the cause remanded.

Beversed and remanded.


text:
    W. W. Ives v. Alice Hulce.
    1. Amendment op judgment.—A final judgment can not be amended after the term at which it was rendered, but it may be corrected in any matter o£ form where a clerical error has intervened, upon notice to the party interested.
    2. Same.—Where it clearly appears that the judgment as entered is not the sentence which the law ought to have pronounced upon the facts established by the record, and is not what the court designed it should be, the court acts upon the presumption that the error is a clerical misprision rather than a judicial blunder, and sets the judgment entry right by an amendment nunc pro tunc.

    Error to the Circuit Court of McLean county; the Hon. O. T. Beeves, Judge, presiding.
    Opinion filed August 20, 1885.

      Messrs. Kerrick, Lucas & Spencer, for plaintiff in error;
    that the court has no power, upon motion, to vacate a judgment entered actually, regularly, finally and without taint of fraud at a previous term, cited Cook v. Wood, 24 Ill. 296; Mc-Kindley v. Buck, 43 Ill. 489; Windett v. Hamilton, 52 Ill. 180; Coursen v. Hixon, 78 Ill. 339.
    After the expiration of the term of court at which the judgment was rendered, the power of the court to amend its records is confined to clerical errors and matters of form, and does not extend in any case to entering a judgment different in substance: Baragwanath v. Wilson, 4 Bradwell, 80; Cairo & St. L. R. R. Co. v. Holbrook, 72 Ill. 419; Lill v. Stookey, 72 Ill. 495.
    Mr. William E. Hughes, for defendant in error;
    that under the English statutes it has been decided that a judgment may at a subsequent term be amended by a verdict appearing of record in the cause, cited Smith v. Fuller, 2 Strange, 787; Rees v. Morgan, 3 Dunf. & East, 347-349; Richardson v. Mellish, 3 Bingham, 346; Mahone v. Perkinson, 35 Ga. 207; Tucker v. Hamilton, 108 Ill. 464.
   Wall, P. J.

Alice Hulee brought an action of replevin before a justice of the peace against W. W. Ives and Jos. Ator. The officer having the writ made return that he had executed the same by reading to the defendants, they having refused to deliver up the property upon demand made by him. The record does not show what was the judgment of justice, but the case having been removed to the circuit court by appeal a trial was had by jury resulting in a verdict as follows:

“We, the jury, find defendant Ives guilty and assess the damages at one hundred and seventy-five dollars; we also find defendant Ator not guilty.” The defendant Ives entered his motion for a new trial.

At the next term of the court the motion for a new tidal was overruled and judgment was entered as follows: “It is therefore considered and adjudged by the court that the plaintiff have and recover of and from the defendant, Win. W. Ives, the sum of one cent, her damages so assessed by the jury as aforesaid for the unlawful detention of the goods and chattels,” etc., etc. An appeal to this court was also allowed to the defendant, and while it is not expressly shown by the present record, yet it is to be inferred from the statements made by one of the witnesses, that the case was brought to this court and affirmed; and such appears from the records of this court to have been the fact (14 Bradwell, 389).

It seems to have been supposed that the judgment as entered up corresponded with the verdict and was for $175 until long after the term when it was rendered. The error having been at length discovered, a motion was made at a subsequent term, notice having been given to amend the judgment so as to increase the damages from one cent to one hundred and seventy-five dollars according to the verdict. This motion was by the court allowed and the judgment was so amended. The record is now presented to this court and error is assigned upon the action of the circuit court in allowing said amendment.

It is a general rule that no final judgment can be amended after the term at which it was rendered, but it may be corrected in any matter of form where a clerical error has in tervened, upon notice to the party interested. There is, how ever, no authority to correct judicial errors under the pretense of correcting clerical errors, and to entitle a party to an order amending a judgment or decree, he must establish that the entry as made does not conform to what the court intended it should be when it was ordered. An error of the court, no matter how palpable, can not be corrected in this way, and when it can be determined that the entry as made is what the court intended, there can be no amendment.

Any error or defect in a record which occurs through the act or omission of the clerk of the court in entering or failing to enter of record its judgments or proceedings, and is not an error in the express judgment pronounced by the court in the exercise of its judicial discretion, is mere clerical error and amendable, no matter how important a part of the record it may be. It has also been held that when the error or defect is in respect to the entry of some judgment or proceeding to which one of the parties was as a matter of right and of course entitled, it will sometimes he presumed to have occurred through the misprision of the clerk, and will always be amendable, if from other parts of the record or from convincing and satisfactory proofs it can be clearly ascertained what judgment, order or decree the party was entitled to; and it has been well said that there are many cases where it so clearly appears that the judgment as entered is not the sentence which the law ought to have pronounced upon the facts established by the record, that the court acts upon the presumption that the error is a clerical misprision rather than a judicial blunder, and sets the judgment, or rather the judgment entry, right by amendment nunc pro tuno. Freeman on Judgments, Ch. IV; Rees v. Morgan, 3 Dunf. & East, 347; Lill v. Stookey, 72 Ill. 495; Crouch v. English, 81 Ill. 442; Becker v. Sauter, 89 Ill. 596; Tucker v. Hamilton, 108 Ill. 464.

The case before us is peculiar. The judge’s minutes entered at the term when the case was tried are as follows: “ Trial by jury; jury sworn; verdict (see verdict), mo. by dft. for now trial.” It will be noticed the verdict is not set out here, but only referred to thus: See verdict.

At the next term, when the motion for new trial was disposed of, the minutes are as follows: “Mo. for new trial overruled. Defendant excepts. Judg’t for plff., one cent damages. App’l to App. Court. Bond,” etc.

The order as entered by the clerk is that plaintiff have and recover “ from defendant, Ives, the sum of one cent, her damages so assessed by the jury as aforesaid, for the unlawful detention of the goods and chattels,” etc. It is manifest that the court, in entering the minutes, was laboring under the impression that the verdict which was set out was in the usual form in replevin (overlooking the fact that by reason of the failure of the officer to get the goods the action was really transformed, and that the verdict was for the value of the property as in trover), and therefore the entry for nominal damages was made. The motion for new trial being overruled. the plaintiff was entitled as a matter of right and,of course to a judgment for the amount of the verdict. It may be said in a certain sense that the court intended to make the order in the form as it was entered, and that the clerk but followed the judge’s minutes. Tet it is quite apparent the result is not what the court intended, and in the broad and just sense of the term the order is not what the court designed it should be. This we understand is the crucial test as to whether an amendment should be allowed; and upon principle it is not very material whether the misprision is that of the judge or clerk if the sentence which the court intended has not been entered up. The court evidently intended to enforce the verdict and give the plaintiff the legal benefit flowing therefrom. To say otherwise would be an unworthy imputation upon the court. To overrule a motion for new trial upon a verdict for §175 and then render judgment for one cent, could not have been the deliberate and intentional act of the court, and what was so done is not to be regarded as a judicial error, an “ error in the exercise of the judicial discretion,” but rather an inadvertence in the merely ministerial matter of putting in form the sentence of the court; a slip of the pen, which would have been instantly corrected had attention been called to the fact. [Regarding it in this light it stands upon the same ground of reason and justice as though it were a mere clerical error and should bo subject to correction in the same way. While the case may not be within the letter of the rule, as often stated in judicial opinions and text books, it is clearly within the reason and spirit of it, and is one of those many cases where, as said supra, quoting from Freeman on Judgments, Sec. 70, a it so clearly appears that the judgment as entered is not the sentence which the law ought to have pronounced upon the facts established by the record, that the court acts upon the presumption that the error is a clerical misprision rather than a judicial blunder, and sets the judgment, or rather the judgment entry, right by an amendment nunc pro tune.”

We are of opinion that the court properly permitted the amendment, and the judgment is therefore affirmed.

Affirmed.


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    W. W. Ives et al. v. Alice Hulce.
    Appeal bond—Sureties undertaking.—The statute, in providing a form for a bond which may be used in the case of one defendant, clearly contemplated appeals by several defendants; and the object of the undertaking is to secure the plaintiff in the judgment. It is a reasonable and fair construction to hold, in such cases, that the undertaking of the sureties is several as to each one of the principals, and that where judgment goes against but one, it is within the condition of the instrument.
    Eeeor to the Circuit Court of McLean county; the Hon. O. T. Reeves, Judge, presiding.
    Opinion filed August 20, 1885.
    Messrs. Keeeick, Lucas & Spencee, for plaintiff in error;
    that the undertaking of a surety is to be construed. strictly and lie is bound to the extent and in the manner and under the circumstances pointed out in his obligations and no further, cited Reynolds v. Hall, 1 Scam, 35; Ryan v. Trustees, 14 Ill. 24; People v. Tompkins, 74 Ill. 486; Cooper v. People, 85 Ill. 417; Mix v. Singleton, 86 Ill. 196.
    When a judgment is against two and both appeal, and the bond is conditioned to pay the judgment rendered aga inst “them,” and on the trial judgment is only rendered against one, the surety of the two is not liable: Barnett v. Smith, 17 Ill. 565; University v. Baldwin, 5 M. & W. 581; Bill v. Barker, 16 Gray, 62; Philip v. Wells, 2 Sneed (Tenn.), 154; Griff v. Kirk, 17 La. An. 25; Shinn v. Highthue, 7 Black (Ind.), 238; Lang v. Pike, 27 Ohio St. 498.
    Mr. William E. Hughes, for defendant in error;
    that the surety is liable, cited Seacord v. Morgan, 3 Keyes (N. Y.), 636; Brown v. Conner, 10 Iredell (Law), 75; Wood v. Oxford, 56 Cal. 157; Cook v. Lyon, 54 Miss. 625; Head v. Mathier, 21 Mo. 308.
   Wall, P. J.

This was an action of debt upon a bond brought by defendants against plaintiffs in error, in the Circuit Court of McLean county.

The declaration contains two counts of which the first alleges, in substance, that the defendants entered into a penal bond payable to the plaintiff, the condition of which was, that whereas the plaintiff had, on, etc., before a justice of the peace, recovered a judgment against the said Ives and Ator in replevin for the property mentioned in the writ, and for cost, fz’om which judgment said Ives and Ator had taken an appeal to the said circuit court; now, if said Ives and Ator should prosecute the appeal with effect, and pay whatever judgment should he rendered against them by said court upon the trial of said appeal, or by confession, or, in case the appea, should be dismissed, would pay the judgment rendered against them by the justice, and all costs occasioned by said appeall then said obligation was to he void, otherwise to remain in full force and effect. It further alleges that afterward, in the circuit court, on the trial of the appeal, judgment was entered in favor of plaintiff, against said Ives, for one cent; and that at a subsequent term of said court such further proceedings were had in the case, upon due notice, that it was ordered and adjudged» that the plaintiff should have and recover of and from said Ives, the sum of one hundred and seventy-five dollars and costs of suit, and that said judgment had not been paid.

The second count is in substance the same as the first. To this declaration the plaintiffs in error filed their demurrer, which was overruled by the court, and no plea being filed, judgment was entered in favor of the plaintiff and against defendants below. Damages were assessed at the sum of $245, and final judgment was entered accordingly, and for costs. It is now assigned for error, that by the condition of the bond in suit there is no liability upon the facts alleged in the declaration. The judgment before the justice was against Ives and Ator, and it is insisted that the terms of the bond are such that a judgment in the circuit court against Ives alone is not within the condition, and that the sureties are not liable.

The bond is in the form prescribed by the statute, the condition being that if said Ives and Ator shall prosecute the appeal with effect and pay whatever judgment shall be rendered against them, etc. We think it would be unduly technical to hold that because judgment was rendered against one alone, then the bond should be discharged. It is not contended by counsel, as we understand, that Ives and Ator are not liable on the bond, but that the sureties are not so liable. If the principals are still bound by the terms of the bond, then the sureties are also. By what process of reasoning the sureties can be discharged while the principals are bound, is not made plain. The statute, in providing a form for a bond which may be used in the case of one defendant, clearly contemplated appeals by several defendants, and the object of the undertaking is to secure the plaintiff in the judgment. It is a reasonable and fair construction to hold, in such cases, that the undertaking of the sureties is several as to each one of the principals, and that where judgment goes against but one it is within the condition of the instrument. Such is the conclusion reached by the Court of Appeals of Hew York in the case of Secord v. Morgan, 3 Keyes (N. Y.), 636. The views of the court, as expressed very fully in that case, are quite satisfactory to us, and we are disposed to adopt them as applicable in the construction of our statute. We have been referred by counsel to cases in other States construing the statutes of those States, which if followed here might lead to a different conclusion, but the language of the statutes is not the same in every instance, and the reasoning of the court is not persuasive in the cases which are opposed to the case in Kew .York. We hold, therefore, that this objection by plaintiff in error is not well taken. It is also insisted that the court erred in assessing the damages at the sum specified, and that the damages should be at most for but a nominal sum. This position is based upon the proposition that the court erred in amending the original judgment so as to increase it from one cent to one hundred and seventy-five dollars, and that such error will render the judgment void. If the court had jurisdiction of the person and subject-matter, then a mere error would not render its judgment so far invalid as to be held a nullity in collateral proceedings. It is not disputed that there was jurisdiction of the person, but it is urged that there was no power to make the amendment in question. The record in the case does not disclose the grounds or reasons which operated upon the court in making the amendment, and therefore, as it is a court of general superior jurisdiction, it is to be presumed the amendment was within the power of the court. There can be no doubt that in certain cases of mistake and inadvertence a judgment may be amended as was done in this case, and however erroneous the action of the court may have been upon the facts before it, it must be deemed valid and binding in all collateral proceedings so long as it remains in full force and unreversed. These principles are too familiar to require the citation of authorities in their support, and being applicable, must determine the point involved against the plaintiff in error.

The judgment of the circuit court will therefore be affirmed.

Iffirmed.


author: Per Curiam.

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    W. W. Ives et al. v. Alice Hulce.
    Whex court will grakt appeal.—When the amount involved is nearly up to the limit where an appeal is a matter 'of right, or when the case involves collaterally other matters than those in suit, then if the question is important or difficult of solution there would be such a case as the statute intends; but the court is of opinion that the above does not apply in this case.

       Two preceding cases.

   Per Curiam.

We are asked to certify these cases to the Supreme Court. The sum involved exclusive of costs is $17 5 only, but it is said that there are questions of law of such importance as to justify the request. The statute, Sec. 8, Appellate Court Act, provides that whenever a majority of the judges of this court shall be of . opinion that “ a case decided by them involving a less sum than §1,000, exclusive of cost, also involves questions of law of such importance, either on account of principal or collateral interest, as that it should be passed upon by the Supreme Court,” they may grant an appeal, etc. It is necessary that the question shall be important on account of, or because of either principal interest, or collateral interest. It is not enough that it may be new or likely to arise in other cases, but the principal interest, or collateral interest involved in, or springing from, the case in hand, must be affected by the importance of the question.

It would always afford the court pleasure to grant an appeal in any case where desired, and were it merely a matter of grace or favor, such a request would rarely or never be denied; but the successful litigant may well object to the expense and trouble of an appeal in order to settle a point which may be of general interest, but which so far as he is concerned is of no interest aside from the particular case which has been decided in his favor, and with which he is content. The court has no power to grant an appeal which will subject him to such a burden unless the other party has a right to ask it. Were the amount involved nearly up to the limit where an apjieal is a matter of right, or did the case involve collaterally other matters than those in suit, then if the question were important or difficult of solution there would be such a case as the statute intends; but we see nothing of the sort here, and the motion is denied.


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    City of Bloomington v. Laura Schrock.
    Evidence—Damages for causing miscarriage.—The court is of opinion that the evidence of appellee as to her symptoms alter the accident was properly admitted.
    Appeal from the Circuit Court of McLean county; the Hon. ■O. T. Beeves, Judge, presiding.
    Opinion filed August 20, 1885.
    Mr. T. C. Herrick, for appellant.
    Messrs. Fifer & Phillips and Mr. James S. Ewing, for appellee.
   Pleasants, J.

Appellee recovered judgment hclow for §900 damages for personal injuries, including a miscarriage, by falling upon a sidewalk of the city alleged to have been out of repair through its negligence. The defect complained of was a hole left by the removal of half a plank, and was claimed to have been there for several months next preceding the accident.

She had borne six living children,, had one miscarriage, and was then six months advanced in pregnancy.

Having been out to do some shopping, on her return, about eight o’clock in the evening of Saturday, Oct. 14, 1882, she stepped into this hole and fell, and near midnight of the following Monday, was delivered of the fostus, which was dead. The controverted questions of facts were whether the defect conceded to have been there for some considerable time, had been repaired so recently as to preclude the presumption that the city authorities had notice of its re-appearance before the accident; whether appellee had taken due care to avoid danger from it, considering that she had previously known of it, and that there were other routes no less convenient to her, on which the walks were good, and whether, after the accident, she used due care to prevent miscarriage.

Upon all these questions there was evidence for the plaintiff which we think, notwithstanding the contradictions, was sufficient to support the verdict, and we are further of opinion that there was no error in the rulings or instructions of the court, which would justify the reversal of the judgment.

In the course of her examination in chief the plaintiff, after stating her age, experience, condition of pregnancy, and previous acquaintance with the sidewalk in that locality, narrated the circumstances of her fall, its immediate sensible effects, what she did and how she felt during that evening and night, and said, among other things, without objection, that she “ had no symptoms of labor pains up to that time,” but was nervous and wakeful through the night. She was then asked, “ Did you, during the forenoon of Sunday, feel any symptoms of labor pains ? ” This was objected to as calling for a conclusion, and excluded, hut the court said, “ She may state whether she had any symptoms indicating to her mind they were labor plains,” to which counsel for the defendant ex-cepited.

It is argued that this also called for a conclusion; that what she reasonably ought to have understood to he indicated by her symptoms was the question for the jury, tobe determined by a description of them, and proof of what they did in fact betoken; that the question, as pint, in effect left it to her to say whether she had used due care, for the jury would naturally supipiose that if the court allowed her to say she did not, in fact, suspect there was danger of a miscarriage, the could not he held respionsible for taking no measures to avoid it.

We think it called for a pure fact, which was known to the witness only, and took nothing from the jury. The issue of negligence or due care on the piart of the pilaintiff, after her fall, was to he determined in view of all that she did or omitted, having actual relation to the fall or its effects, and all facts explaining or characterizing her contract in that behalf. These constitute the res gestae. It ap>pears that labor pains are premonitions alike of miscarriage and of natural birth, and of nothing else. Her experience had been large, embracing both situations. She knew her condition tif pregnancy and its stage. At the time mentioned she was in fact within thirty-six hours of miscarriage, and under operation of what she claimed was its cause, and yet she did not send for a physician until the following morning. How it is clear that the matter called for, would explain or characterize this omission at least to some extent, and if the answer had been in the affirmative instead of the negative, not even the counsel for the defendant would have doubted its materiality. Besides, no amount of proof that ordinary care would not have led her to recognize or discover symptoms of miscarriage, which counsel insists she was bound to show, could have availed her until she first rebutted the inference, not unreasonable from the circumstances mentioned, that she did recognize them. The question, then, was not improper.

Hor was there any great impropriety in the manner of reexamining the witness Olga Schrock; but if there had been, the matter elicited was too trivial to be noticed.

Defendant introduced evidence tending to show that the opening in the walk was closed just before the accident by a new board, put on by Hullinger and Burnham. Evidence in rebuttal was received, which tended to show not only that it was not repaired before the accident, but that it was repaired after it, and by filling the hole with ashes or cinders.

It is said that this evidence could not rebut the other, as to the time when the repairing relied on was done, since it related to other and different repairs, and yet was hurtful, as tending to show a consciousness of negligence on the part of the defendant. But each of the witnesses who spoke of the filling, testified that the defect was not repaired in any manner before the accident. So far it was undeniably rebutting. One of them said, “ it was patched the next wreek by filling it with coal slack and a few days afterward a board was put over it;” and each of the others said the filling was done after the accident. So that the evidence of the time of filling, in view of the testimony, that fixed it with reference to that of the putting on of the board, was also rebutting. And if not, it could have done no harm. Defendant’s proof of the time when the hoard was put on was left unshaken by it, and that the walk was defective from the time of plaintiff’s fall until it was repaired, and that the defect was such as to need repair—being all it tended to prove—was never denied.

We think none of the exceptions to instructions well taken; hut as our differences with counsel respect only the meaning and effect of the language used and not any matter of law, it would he useless to argue them. In support of his criticism of the first and second given for plaintiff, that they assume a fact in dispute, several authorities are cited. We have examined them and do not find that they sustain his point.

Perceiving no/ error in this record, the judgment will be affirmed.

Judgment affirmed.


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    Louis Yeck v. George W. Crum.
    Mistake.—Land was conveyed by a wrong description, and the purchaser obtained a loan from a third party, secured by a mortgage following the same incorrect description. Held, under the circumstances of this case that the mortgagee did not occupy the position of an innocent purchaser for value, as against the original vendor, and the mortgage was declared a cloud upon the land actually described therein (also belonging to the original vendor), and ordered released by the decree of the court.
    Appeal from the Circuit Court of Cass county; the lion. Cyrus Epler, Judge, presiding.
    Opinion filed August 20, 1885.
    Messrs. Pollard & Phillips, for appellant.
    Messrs. Ketcham & Gridley, for appellee.
   Pleasants, J.

This was a bill against appellant and George A. Crum to remove a cloud from appellee’s title. The case made by it is in substance as follows: Complainant’s farm of two hundred acres included the BT. E. £ of the S. E. ¿ of sections 26 and 35, respectively, in T. 17, BT., E. 11, west of the 3d P. M. His buildings were all on the forty, in section thirty-five^ which was worth, with the improvements, $100 per acre — being double the value of the other. On May 6, 1881, he sold the latter to his cousin, the defendant, George A. Crum, who owned land adjoining it, for §2,000 ; but in the description in his deed, intending to convey it, the section was designated by mistake of the scrivener as thirty-five, instead of twenty-six. Under this deed said defendant held actual possession of the north forty for several years, and until he conveyed it as hereinafter stated. He never claimed any interest in the south forty, which complainant then and ever since occupied, and still occupies with his family, as his homestead. In the meantime, however, on May 9, 1881, he made a loan of William Epler, which he intended to secure upon the land he had so purchased, but the description in the mortgage actually given, being taken from the deed above mentioned, followed the mistake therein, which mortgage was duly recorded. In May, 1883, he paid this indebtedness, and obtained a release of the mortgage by means of a loan made for that purpose, from the defendant Yeck, of $1,000, at two years, which was also intended to be secured by mortgage of the same land, but the description therein was taken from the one previously given to Epler, and so the mistake was again repeated. This mortgage was also duly recorded, and the debt is still unpaid. On the 10tli of August, 1883, George A. Crum sold, and by deed of warranty conveyed the forty in said section 26, to Oswell Skiles. The mistake in the deed from complainant, and in the mortgages to Epler and Yeck was not discovered until August, 1883, after the conveyance to Skiles. Thereupon complainant prepared a deed to George A. Crum of the tract so conveyed to Skiles, in correction of that of May 6, 1881, to be delivered upon the execution to him, by said George A. Crum, of a quitclaim of said south forty, which was effected in November following, after repeated but fruitless efforts by complainant and his attorney, to get said George A. Crum to pay or otherwise secure his said indebtedness to Tech. The bill avers that appellant was well acquainted with complainant’s farm when he took said mortgage, and then knew that the land therein described was not owned by said George A. Crum, and was the property and homestead of complainant, and used no means of ascertaining whether it correctly described the land intended to be mortgaged, except a comparison of the description therein given with that contained in said mortgage to Epler, and that he still l.o'ds the mortgage so taken and refuses to release the same, and prays that it may be declared a cloud upon complainant’s title and removed accordingly.

The bill was taken pro confesso as against the defendant, Crum, but an answer was filed by appellant denying that he knew the description of the land on which complainant resided, or that George A. Crum did not own that described in respondent’s mortgage; averring that said George A. offered to mortgage the land so described, and that respondent, before loaning the $i,0C0, examined the records and found the title to be in said George A., subj ect only to the Epler mortgage, and setting up that complainant, after discovering the alleged mistake in his deed to said George A., of May 6, 1881, and in respondent’s mortgage, conveyed to said George A. the M". E. of S. E. of said section 26, well knowing that said George A. had then conveyed the same by deed of warranty to Oswell Sidles, thereby putting it out of his power to correct effectually the alleged mistake in respondent’s mortgage.

To this answer there was a general replication, and on final hearing, upon the pleadings and proofs, the circuit court made a decree, finding the averments of the bill to be true and granting the relief prayed.

Appellant insists that he occupies the position of a bona fide purchaser for value. But a purchaser of what? If, in his purchase, he really intended the particular land described in the mortgage, or if, with no particular land in view, he intended the forty acres bought by George A. Crum of appellee, wdiatever might be its description, and had no other knowledge of its description but that afforded by the deeds or records, he might hold his mortgage as against the appellee, who, in that case, could not set up his mere possession as notice of his claim against his own deed. But if he knew the particular tracts occupied by complainant and George A. Crum, respectively, though not their description, and intended the latter, then he is not in equity a purchaser of the other, and the question of his notice of the real owner’s claim or the ■want of it would, therefore, be immaterial; so also would be the fact that appellee’s deed purported to vest the title to it in the mortgagor; for it is r.oi the land that either the appellant or his mortgagor intended should be mortgaged. That was the land occupied by the mortgagor which was the BT. E. of the S. E. of 26, and it is not pretended that appellee, by his deed or otherwise, ever gave him to understand that the proper description of that land was the 1ST. E. of the S. E. of section 35. If from that deed and other circumstances he inferred that it was, the mistake was in the inference, and the inference was all his own. It is of no consequence in this case, therefore, whether there was or was not a mistake in that deed. This is not a bill to correct a mistake by reformation of the instrument. That is a matter between the parties to it. Its reformation might fully answer his purpose, but he can not insist upon it, and does not ask it. What he seeks is the cancellation of the instrument on the grounds that, by a mistake of the parties to it in respect to the description of the premises, it is a cloud upon the title to his land, and so it is if it be true, as alleged, that these parties intended a mortgage upon land mutually Imown, and which is really the ÍST. E. of S. E. of said section 26. The chancellor, upon the proofs, found it to be true, and we think rightly so found. It is unnecessary here to discuss them. •

Upon the facts shown it is manifest that Skiles could have compelled a correction by appellee of his deed of May 6, 1881. Its correction, as voluntarily made, being due both to George A. Onun and to Skiles, was therefore no wrong to appellant.

Perceiving no error in this record the decree will be affirmed.


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    Peoria, Decatur & Evansville Ry. Co. v. Indiana S. Berry.
    1. Evidence.—Where a medical witness was permitted to express his opinion as to whether the plaintiff was permanently injured, based upon an examination of the case made six months before the trial. Held, that it can not be judicially determined that an opinion so predicated is incompetent.
    2. Instructions—Time on injury.—Where it was objected that an instruction required the plaintiff to have exercised “ due care at the time of the alleged injury ’ ’ only. Held, that the objection in this case is untenable. The jury would understand the time referred to by the instruction to be, not the very moment the hurt was received, but the general occasion covered by the proof.
    Appeal from the Circuit Court of Coles county; the Hon. J. W. Wilkin, Judge, presiding.
    Opinion filed October 5, 1885.
    Messrs. Stevens, Lee & Horton, and Messrs. Wiley & Heal, for appellant.
    Mr. Horace S. Clark and Mr. F. M. Phipps, for appellee.
   Wall, P. J.

This was an action on the case to recover damages for injuries sustained by the appellee in consequence of the alleged negligence of appellant in operating its train through the city of Mattoon.

The plaintiff alleged that she was riding in a wagon drawn by horses along a public street crossed by appellant’s track, and that the train moving at a reckless rate of speed and without giving the proper signal by bell or whistle, suddenly appeared, frightening the horses, causing them to turn and run, throwing the plaintiff from the wagon, thereby producing the injuries complained of.

The main point urged for our consideration is that the verdict for plaintiff is not supported by the evidence, and we have carefully read the testimony.

There is conflict in the proof as to the rate of speed, whether signals were given, and whether the driver of the team might not, in the exercise of ordinary care, have seen the train in time to have avoided the accident; but it was the province of the jury to consider and reconcile all the evidence, and we can not say that their finding is so unwarranted as to justify us in reversing the judgment.

It is objected also that the court erred in permitting a medical witness to express his opinion to the jury as to whether the plaintiff was permanently injured, based upon an examination of the case made six months before.

It can not be judicially determined that an opinion so predicated is incompetent. The witness was an expert and it may be that there were such indications as to justify the opinion to which he was willing to adhere without a new examination. The jury could of course consider the lapse of time in weighing his evidence and would naturally do so.

The verdict was for a moderate sum, $175, and even if there was no permanent injury, the allowance could not be regarded as too high. It is manifest therefore this evidence, if it was improper, had no prejudicial effect.

Objection is taken to. the language of the plaintiff’s first instruction in that it requires the plaintiff to have exercised due care “ at the time of the alleged injury ” only.

We see nothiiig in the point thus made. The cases cited in support were very different from this and perhaps the criticism there made was just. In the present case the jury would understand the time referred to by the instruction to be, not the very moment the hurt was received, but the general occasion covered by the proof.

It is suggested also that the last instruction given for plaintiff is faulty in “limiting the consideration of the jury to one element of testimony.” This instruction refers to the measure of damages only, and authorizes the jury to consider, if proved, any disability resulting to plaintiff from the injury in question, rendering her less capable of attending to her business than she would have been otherwise. We find no objection here.

The judgment of the circuit court is affirmed.


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    Board of Supervisors of Logan County v. The People ex rel., etc.
    1. Road and Bridge Act—Emergency.—-Where abridge was washed away in February, 1883, and the question at issue was whether such an emergency as contemplated by the law which went into force July 1, 1883, continued and existed on the 1st of July. Held, that under the facts disclosed by the record there was then such an emergency as contemplated by the law, and it was competent to proceed with the work at once and present the petition for county aid during its progress or after its completion.
    2. Two towns—County aid.—Where a- bridge crosses a stream which is a town line or near it, the expense is to be sustained by the two towns, and when, as an additional feature, the facts bring the case within the purview of section 19 of the Road and Bridge Act, the two towns may jointly seek aid from the county.
    3. Instructions—Public highway.—Although one of the instructions as to the road being a public highway, stated the law inaccurately in one or two points, yet had the instruction not been given at all, or had it been properly modified, the jury must certainly have found as they did upon this point; the defect is not sufficient ground to reverse.
    Error to the Circuit Court of Logan county; the Hon. Cyrus Epler, Judge, presiding.
    Opinion filed October 5, 1885.
    Messrs Beach & Hodkett and Mr. Egbert Humphrey, for plaintiff in error;
    that the statute upon which this proceeding is based was not passed until after the bridge was swept away, and has a prospective operation only, cited Thompson v. Alexander, 11 Ill. 54; Conway v. Cable, 37 Ill. 82; Robinson v. Rowan, 2 Scam. 499; Knight v. Begole, 57 Ill. 122; In re Tuller, 79 Ill. 99; Marsh v. Chesnut, 14 Ill. 223; Town of La Salle v. Blanchard, 1 Bradwell, 635; People v. Thatcher, 95 Ill. 109.
    Messrs. Bunn & Hoblit, for defendants in error.
   Wall, P. J.

This was a proceeding by mandamus to compel the county of Logan to contribute one half the cost of a certain bridge, under Sec. 19, Ch. 121, R. S.

There was judgment- according to the prayer of relator’s petition, and the record is brought here by writ of error, at the instance of the county. In the month of February, 1883, a bridge across Sugar Creek, on the line between the towns of West Lincoln and Sheridan, was swept away by high water. The commissioners of highways of the two towns met in April and agreed to rebuild, the cost to be borne equally by the towns. A contract was let, in June, for a pile bridge, similar to the old one, and a pietition -was presented to the board of supervisors, at the June meeting, asking for county aid, to which the board responded by appropriating §550, which was not expended. The contractor got ready to build the bridge as soon as the stage of water would permit, and it was then found that by reason of the condition of the bed of the stream piles could not be driven. This condition had been produced by the washing away of the gravel and clay which had previously been there, leaving nothing but hard-pan and a rocky formation into which it was impossible to force the piles. This became known about the latter end of August, and the commissioners of the two towns then determined to build an iron bridge, with stone abutments. In order to accomplish this during the current year, it was necessary to act promptly, so that the mason work could be done during the low water of autumn, otherwise it would be deferred until the next year. There wras a pressing necessity for the bridge, to accommodate the public, and the commissioners, after giving notice as required by law, let the contracts for an iron bridge and stone abutments, on the 10th of September, and on the following day presented a petition to the board of supervisors, asking for county aid in the sum of $3,060, to meet half the expense. This petition was not accompanied bj7 an estimate of the cost, etc., sworn to by the commissioners, as required by Sec. 19, Oh. 121, but the county board acted upon the petition and appropriated $1,000. In December, another petition was presented which was not noticed by the board, praying for the balance, $1,185. In June, 1884, after the work was all done, another petition was presented to the board, which it may be assumed was in proper form and sufficient to call for the action of the board if it was presented in due time; and here arises the first legal question we are to consider.

The Hoad and Bridge Act was amended in 1883, and the provision for county aid, in cases where a bridge, to be built by a town, is an unreasonably heavy burden for the town, which had been contained in former statutes, was re-enacted as section 19, above referred to. This section is unlike the previous provision, section 110 of the act of 1879 ; but the only points of difference necessary to be noticed now are in the two provisos at the end of the section, the first of which is to the effect that “ before any bridge, etc., shall be constructed under the provisions of this section, the commissioners shall make a careful estimate of the probable cost of the same, and attach thereto their affidavits that it is necessary, and will not be made more expensive than is needed for the purpose desired, and such estimate and affidavit shall be filed with the petition.”

The second is as follows: Provided, that in case of some emergency arising from the sudden destruction or serious damage to a bridge or its approaches, when delay in repairing or rebuilding would be detrimental to the public interests, such petition to the county board may be presented “ during the progress of the work, or after its completion, and if the facts appear as contemplated by this section, the county board shall appropriate one half of such cost with like conditions that the town shall pay the other half.”

The law as thus amended took effect July 1,1883. Assuming that under the former statute the petition to the county board must have been presented before the work was done, the question occurs whether the present case is within the act of 1883, which allows the petition to be presented, upon a certain contingency, during the progress of the work or after its completion. The act of 1883 repealed and took the place of the previous act, but as the bridge had been destroyed in February, before the passage of the act, it is contended the case is not within its provision. It is said the law must operate prospectively, there being no evidence that it was intended by the legislature to be retroactive, and this view, certainly correct, is not controverted by counsel. What is meant by the phrase some emergency arising from the sudden destruction of abridge,” is a point, however, upon which counsel do not agree. The statute should receive a fair, not a loose, nor an illiberal construction, having in mind the obj ect to be accomplished. That object is to furnish suitable and necessary bridges for the accommodation of the public and to provide an equitable mode of dividing the burden thereof between the taxpayers of the locality, and the county at large. The People, etc., v. The Board, etc., 100 Ill. 640. Whether the contemplated emergency exists will- depend upon the facts of the particular case. In the present instance it arose when the bridge was washed away, in February, and continued and existed on the 1st of July, when the amendment went into force. When in the exercise of ordinary and reasonable diligence, under all the circumstances, it was discovered in the latter part of August that piles could not be driven into the bed of the stream, it became highly important that there should be prompt action in order to provide the only bridge then practicable, viz., one with stone foundations, before another winter and spring should intervene. We are of opinion that upon the facts disclosed by the record there was then an emergency such as contemplated by the law, and that it was competent to proceed with the work at once, and present the petition for county aid during its progress or after its completion; and conceding, without deciding, that the board could not waive the defect in the petition of Sept. 11th, we hold it is no valid objection that a sufficient petition was not presented till June, 1884, after the work had been fully completed.

Various questions of fact were tried by jury, and special findings were returned, and among others were the 16th, 17th and 18th, which were, in effect, that about the latter part of August the commissioners found it not practicable to build a wooden bridge; that after this discovery there was an emergency requiring immediate advertising and letting said iron bridge, and that delay would have been detrimental to the public interest. There was ample support in the evidence for this conclusion of the jury. It is objected that there is no authority for the filing of a petition by two towns jointly. The case of a bridge to be built by two towns, is within the letter and spirit of section 19. Where a bridge crosses a stream which is a town line, or near it, the expense is to be sustained by the two towms, and when, as an additional feature, the facts bring the case within the purview of section 19, the two towns may jointly seek aid from the county. Here the two towns had agreed to rebuild, at joint expense, and had entered into contract accordingly, pursuant to Secs. 21 and 22. We deem the objection not well taken. It is objected also that the proof fails to sustain the allegation that the bridge is on the town line. The jury found the allegation to be true, and the evidence justified them in so finding. It is urged also that there is no proof that the bridge was on a public road. Here, again, the finding of the jury is for the relators and is amply supported by the evidence. The road has been used, recognized and worked as a public highway for many years, and there was really "no conflict on this point. Several witnesses testify that it was laid out ten or twelve years before, and was kept up by the authorities. It was much traveled— and the county board, by responding favorably to two petitions for county aid, have furnished evidence that they considered it a public highway. Only one witness is produced who seems not to have known that it was extensively traveled and this finding of the jury was to be expected from the evidence before them. There was evidence enough in this point to have sustained a conviction of the commissioners upon an indictment for not keeping it in repair; Eyman v. The People, etc., 1 Gil. 4, where the Supreme Court say, ££if a road is used and traveled by the public as a highway and is recognized and kept in repair as such by the county commissioners and supervisors, whose duty it is, by law, to open and repair public roads, proof of this fact furnishes a legal presumption, liable to be rebutted, that such a road is a public highway.” See also Nealy v. Brown, Ibid. 12; C. & A. R. R. Co. v. Adler, 56 Ill. 344; I. C. R. R. Co. v. Benton, 69 Ill. 174.

It is urged also that the second instruction for defendant in error was erroneous, and worked such prejudice that the judgment should he reversed. It is as follows : The court instructs the jury that if they believe from the evidence that the road on the town line, between the towns of West Lincoln and Sheridan, across Sugar Creek, had been ten years an open public road, and had been recognized as such by the owners of the land over which it runs, and also by the public authorities of the towms of West Lincoln and Sheridan, as a public highway, and worked and repaired, and bridges built across the stream by said authorities, then that is sufficient proof of the existence of a public highway in this case.”

It is said there is no evidence that the road had been recognized as such by the owners of the land over which it runs. This is true, and it has often been held that instructions must be based on evidence. It is also a just criticism that the instruction should have informed the jury that the facts stated afford grima, facie evidence of the existence of a public highway, rather than, as is said, that they are “ sufficient proof ” of its existence. But had this instruction not been given, or had it been modified in the respects mentioned, the jury must certainly have found as they did upon this point. They could not reasonably have found otherwise, and entertaining this view of the case we can not regard the defect in this instruction as a sufficient ground upon which to reverse the judgment.

Considering the whole record, we find that substantial justice has been done according to the forms of law, and therefore the judgment of the circuit court is affirmed.

Affirmed.


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    Chicago & Alton R. R. Co. v. Hiram C. Calkins.
    1. Injury to real property—Jurisdiction.—The expression * ‘ injury to real property” used in clause 2, §13, Oh. 79 of the Revised Statutes, which defines the jurisdiction of a justice of the peace, embraces all injuries to real property, whether direct or consequential.
    2. Cause oe action—Instruction.—Where the evidence tended to show that certain works built by a railroad company were permanent in their form and character, and that the injury thereby occasioned to the adjoining property was a loss to the then owner, for which he then had a cause of action which did not pass to plaintiff by his deed. Held, that it was error in the court to refuse to instruct the jury upon this view of the law.
    Appeal from the Circuit Court of Greene county; the Hon. Cyrus Epler, Judge, presiding.
    Opinion filed October 5, 1885.
    Messrs. Patterson & Starkey and Messrs. Withers & Henshaw, for appellant;
    that the justice of the peace had no jurisdiction of the cause, cited Winkler v. Meister, 40 Ill. 349; I. C. R. R. Co. v. Reedy, 17 Ill. 580; McConnell v. Kibble, 29 Ill. 483; Stuckey v. Churchman, 2 Bradwell, 584.
    The injury, if any, was to appellee’s grantor: I. C. R. R. Co. v. Allen, 39 Ill. 207.
    Mi-. David F. King, for appellee.
   Wall, P. J.

The present action was instituted before a justice of the peace, where the plaintiff recovered a judgment from which the defendant took an appeal to the circuit court, and being defeated there also brings the case here, and assigns various grounds for error. The cause of action is an injury sustained to the real estate of the plaintiff by reason of an overflow of water produced, as alleged, by the works of the defendant. The property of plaintiff lies near the track of defendant and near a small stream or “ branch,” which is crossed by the embankment on which is placed the defendant’s track. Under the embankment is a culvert, built for the purpose of accommodating the water of the stream or branch ” which runs in a northern course and meets another stream on the north side of the track. In order to provide a supply of water the defendant made a large ‘reservoir by placing a dam across the depression formed by the union of the two streams or branches, and the water, finding its level, backs up and at some periods stands in the first mentioned branch above the top of the culvert.

It is claimed by the plaintiff that while the culvert may have been sufficient for all ordinary purposes before the reservoir Avas made, it is not so now, and that the bottom of the branch and reservoir is filling up with earth washed from the general watershed, so that there is a growing tendency to overflow, and that the injury done to his property is the natural and necessary consequence of the works of the defendant. The defendant insists that due skill and foresight were used in making an outlet, and that, the injury in question was caused by an extraordinary storm which it was not bound to anticipate and provide for. The case having been thus stated, it is proper now to notice a preliminary question, raised by the appellant, as to whether the subject-matter was within the jurisdiction of a justice of the peace.

By clause 2, Sec. 13, Ch. 79, R. S., that officer has jurisdiction “ in actions for damages for injury to real property or for taking, detaining or injuring personal property.” The expression here used, injury to real property,” is about as comprehensive as could well be devised, and would seem to embrace all injuries, whether direct or consequential, and this we understand to be the view taken by the Supreme Court in Lachman v. Deisch, 71 Ill. 59. We are of the opinion the justice had jurisdiction. Upon the question whether in the construction of the culvert and reservoir the railroad company had used proper care and foresight, and whether the provision made was sufficient for all ordinary purposes, there was much conflicting evidence. There can be no doubt the flood was unusual in quantity and effect and that it may well be termed extraordinary, and were the features of the case uncomplicated "by the testimony showing to some extent a deposit of mnd and sediment, we should have no hesitation in saying that, by the weight of evidence, the company had made such provision as could reasonably have been required, and is therefore not liable for the damages complained of. I. C. R. R. Co. v. Bethel, 11 Bradwell, 17, and authorities there cited. We are inclined, however, not to determine this question of fact in view of another point, purely legal in its nature, which is presented for our consideration. It appears that the plaintiff purchased the property after the works of defendant had been constructed. The evidence tends to prove that these works are permanent in their form and character and that the injury thereby occasioned to the property was a loss to the then owner, for which he then had a cause of action. The injury was in the liability to overflow by reason of the manner in which the works were built, and the situation, in a legal aspect, was the same as though there was then a permanent excavation or obstruction upon the property. We say the evidence tends to show such a state of facts and that the cause of action had accrued to the person who then owned the lot. This cause of action was not assignable and did not pass to the plaintiff by his deed. I. C. R. R. Co. v. Allen, 39 Ill. 207; Maher v. C. & A. R. R. Co., 91 Ill. 312.

The defendant asked the court to instruct the jury upon this view of the law, but the court refused, and in this ruling there was error, prejudicial to the defendant. The court also refused to permit the witness Hubbard to express his opinion as to the capacity of the culvert to carry aw'ay all the water that might be expected. This witness was an engineer of experience in such matters, and we think as an expert he might properly give his opinion to the jury upon this point.

The judgment will be reversed and the cause remanded.

Eeversed and remanded.


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    Chicago & Alton R. R. Co. v. William J. Smith.
    ■ Damage by ovebplow—Right oe action.—A mere tenant, who voluntarily occupies property subject to the danger of overflow from an adjoining embankment culvert built by a railroad company, has no right of action for damage to personal property, caused by such overflow.
    Appeal from the Circuit Court of Greene county; the Hon. Cyrus Epler, Judge, presiding.
    Opinion filed October 5, 1885.
    Messrs. Patterson & Starkey and Messrs. Withers & Henshaw, for appellant.
    Mr. David F. King, for appellee.
   Wall, P. J.

This case is in its facts like the case of C. & A. R. R. Co. v. Calkins, except that in the present case the plaintiff is not the owner of the lot overflowed and claims no damages for injury to the realty. His damages consist in the loss of vegetables growing in his garden, and certain damages to personal property, such as a stove, bedding, clothing, etc., then in the house, situate upon the lot occupied by him as a tenant.

The liability of the defendant, if any there be, must be predicated upon and grow out of an imperfect performance of its duty and obligation to adjoining land owners in the construction of the embankment culvert .and reservoir, and the damages for which it is liable must consist of the depreciation in the value of the land so affected by reason of the improper construction of these works. For this there was a cause of action in the land owner, and he might have recovered such damages as were the proximate result of the defendant’s wrongful act.

The plaintiff, however, was not the lot owner, but a mere tenant, who has voluntarily occupied the property, subject as it' was to the danger of overflow. He can not in this wav acquire a right of action. I. C. R. R. Co. v. Allen, 39 Ill. 205. If he could, the defendant would he at the mercy of all persons who might choose to place their personal property in such an exposed position, and might then be compelled to pay many times more than the original value of the lot; and this to those whose property was in no wise affected originally by the act of the defendant, and who had no occasion to complain thereof.

If one so situated will occupy land so imperiled it must be at his own risk. The judgment of the circuit court is reversed and the cause remanded.

Beversed and remanded.


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    Joseph P. Johnston v. Mary A. Dunavan et al.
    1. Homestead .—The estate of homestead is created by the statute for the protection of the family of the debtor, and the right thus created can be relinquished only in the mode pointed out by the statute or by abandonment.
    2. Defective acknowledgment.—Hpon a bill filed to foreclose a mortgage, where the instrument contained the usual release of homestead, but the certificate of acknowledgment failed to state that the homestead was released by the husband, though it was sufficient in that respect "as to the wife, it was sought to correct the certificate so as to conform to the statute. Held, that there is no power in a court of equity to make the correction.
    Error to the Circuit Court of Morgan county; the Hon, Cyrus Euler, Judge, presiding.
    Opinion filed October 5, 1885.
    Messrs. Morrison & Whitlock, for plaintiff in error.
    Messrs. Ketchum & Hatfield, for defendants in error.
   Wall, P. J.

On the eighteenth day of January, 187?$ Mary A. Dunavan and Jesse J, Dunavan, her husband, executed and delivered to Joseph P. Johnston a deed of mortgage upon certain real estate, owned in fee hy said Mary, of less value than $1,000, then occupied hy herself and family as a homestead, to secure the said Johnston in the sum of $400, which he then loaned to the said Jesse J. Dunavan. The instrument contained the usual release of homestead, but the certificate of acknowledgment fails to state that the homestead was released by the husband, though it is sufficient iu that respect as to the wife. Upon a bill filed to foreclose the mortgage it is sought to correct the certificate, so that it shall conform to the statute and thereby release the right of homestead.

It was alleged that when the mortgage was given it was understood and agreed that all such rights should be waived, so that the mortgage should he a valid and effective lien as to the entire estate, hut that through the failure of the justice to make the proper certificate the intention of the parties was not accomplished.

There is some evidence, and we may say it is satisfactory, that when the loan was negotiated it was understood on both sides that the security was to be perfect, and that the lion thereby created was to he paramount, though the release of the right of homestead was not definitely or specifically discussed. Nor is it clear that the justice, when he took the acknowledgment, was informed hy the mortgagors that they intended to make such release. The .justice in his testimony states, that wffiile he can not recall the conversation on that occasion he is confident that he received such an acknowledgment as was necessary to make the instrument effective for all that it set forth; but it is apparent that he has but a general recollection of the matter, and the mortgagors deny that they made any acknowledgment whatever as to the homestead. There is great uncertainty as to what is the truth upon this point. The circuit court denied the specific relief sought, and this presents the only question for our decision. The estate of homestead is created hy the statute for the protection of the family of the debtor. It is a part of the legislative policy of the State, and, by an unbroken current of judicial decisions, the rule is firmly established that the right thus created can be relinquished only in the mode pointed out by the statute or by abandonment. Among the many eases decided, the following may be cited: Hoskins v. Litchfield, 31 Ill. 137; Mitchell v. Caverly, 58 Ill. 428; Trustees, etc., v. Hovey, 94 Ill. 394; McGee v. McGee, 91 Ill. 548; McMahill v. McMahill, 105 Ill. 601. In the two last named cases it was held that the estate could not be barred or waived by an ante-nuptial agreement.

So also it has been held with regard to personal property exempt from execution, that the exemption can not be waived by an executory agreement. Recht v. Kelly, 82 Ill. 147.

Similar in principle is the rule that the right of dower can be released only in the mode provided by law, and that a court of equity has no power to correct a defective acknowledgment or certificate by the officer. Russell v. Rumsey, 35 Ill. 362.

We are of opinion there is no power in a court of equity to make the correction here prayed for. The mortgagee is presumed to Imow what is necessary for his security, and in the present instance he testifies that he looked the mortgage over and found it in proper form, and then gave a check for the money, but did not read the acknowledgment as he presumed it was all right. A proper degree of caution on his part would have saved him from loss, and were there no other reason, his negligence would bar him of relief in a court of equity. Russell v. Rumsey, 35 Ill. 371.

The decree of the circuit court is affirmed.


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    City of Havana v. Milroy Vanlaningham.
    1. Ordinance—Common carriers.'— Ordinances winch are designed to operate upon those who hold themselves out as common carriers in a city for hire, and to so regulate them as to prevent extortion and wrong to strangers and others compelled to employ them in having their property or persons carried from one part of the city to another, come properly under a rightful exercise of the police power.
    2. Same.—Where appellee was in no legal sense a common carrier, but being the owner of a livery stable let two of his teams to another person to be used for the temporary purpose of hauling and securing a quantity of ice. Held, that he was not within the terms or spirit of the ordinance.
    Appeal from the Circuit Court of Mason county; the Hon. Gr. W. Herdman, Judge, presiding.
    Opinion filed October 5, 1885.
    Mr. S. A. Murdock and Mr. Hugh Fullerton, for appellant.
    Mr. E. A. Wallace, for appellee;
    as to the construction of the ordinance, cited Joyce v. East St. Louis, 77 Ill. 176; Farwell v. City of Chicago, 71 Ill. 269; City of Collinsville v. Cole, 78 Ill. 114.
   Wall, P. J.

This was a suit to recover a penalty for violating an ordinance of the city of Havana. The ordinance provides that “no person shall pursue the occupation of carrying goods or property for hire in any vehicle from one place to another, or shall keep, own or use any dray, wagon or other vehicle for the purpose of carrying goods or other property for hire from one place to another within the city, without a license, under a penalty,” etc., and was passed in pursuance of the power contained in clause 42, Sec. 62, Ch. 24, R. S., which authorized the city to “ license, tax and regulate hack-men," draymen, omnibus drivers, carters, cabmen, porters, and all pursuing like occupations, and prescribe their compensation.” Such ordinances adopted under like authority have several times been considered by the Supreme Court, and it has been held that they are designed to operate upon those who hold themselves out as common carriers in the city for hire, and to so regulate them as to prevent extortion, imposition and wrong to strangers and others compelled to employ them in having their property or persons carried from one part of the city to another, and this is said to be a rightful exercise of the police power, Farwell v. City of Chicago, 71 Ill. 269; Joyce v. City of East St. Louis, 77 Ill. 156; City of Collinsville v. Cole, 78 Ill. 114; Cooley on Const. Lim., 201.

The appellee was not engaged in the occupation of carrying property for hire, nor did he keep his vehicles for that purpose within the meaning of the ordinance. He was in no legal sense a common carrier, but being the owner of a livery stable, hired two of his teams to another person to be used for the temporary purpose of hauling and securing a quantity of ice. He was not within the terms or spirit of the ordinance, and was properly acquitted.

The judgment is affirmed.


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    Wabash, St. Louis & Pacific Ry. Co. v. Wilson Gordon.
    Hbsltgencb.—Fellow servants.—As the court below ignored the points upon which the case turned, viz., as to the negligence of fellow servants and whether the injury was not produced by causes incident to the service, it was error.
    Error to the Circuit Court of Sangamon county; the Ho n William L. Gross, Judge, presiding.
    Opinion filed October 5, 1885.
    Messrs. Greeks, Burkett & Humphrey, for plaintiff in error.

      Messrs. Mo Glees and & Keys and Mr. Webnee E Loomis, for defendant in error.
   Wall, P. J.

The defendant in error, Wilson Gordon, brought suit and recovered judgment against the plaintiff in error for personal injuries sustained by him while in the serv. ice of the plaintiff in error.

Gordon was employed on a freight or construction train, which carried a pile driving machine, and it was his duty to assist in the management of the machine and in the management of the train, when necessary or when required. On the day in question the pile driver train was ordered to run from Springfield to Decatur on the time of train Mo. 6, thirty minutes late. Train Mo. 6 was a regular passenger and was that morning one hour behind time, so that the pile driver train, if orders were obeyed, would be thirty minutes ahead of Mo. 6. The pile driver train was delayed in getting out of Springfield and otherwise, of which, however, no notice was given to the train despatcher, and when it reached Lanes-ville, the fifth station east of Springfield, it was one hour and three minutes behind the schedule time of Mo. 6, and was therefore thirty-three minutes behind the time it was ordered to make. While standing on the track at Lanesville and before the proper signal could there be given to the rear train, it was overtaken by Mo. 6, and the collision occurred in which Gordon received his injury. There is evidence that the morning was very foggy, and there is evidence tending to prove, the rear train did not give the proper warning by ringing bell or sounding whistle as it approached the station of Lanesville. The engineers in charge of both trains were provided with time cards or schedules, indicating the time which was to be made by them respectively, under the orders on which they were then running, upon which time cards were printed rules regulating their conduct in case of delay.

By rule two it was provided that when a train is behind time or delayed at a station long enough to be in danger of being overtaken by another train, the conductor must have signals posted at a distance of not less than 800 yards to prevent the possibility of collision. And by rule twenty it was provided that when one train follows another it must be kept, while running, at least two miles behind the preceding train, and must cautiously approach all stations, expecting to find the leading train occupying the main track. It seems clear, therefore, that the railroad company had made proper rules for the guidance of its employes under such circumstances and that the orders given by the train despatcher were free from ambiguity or difficulty, so that the collision was due to the negligence of those in charge of the first or second train, or possibly to the concurring negligence of both. Conceding that the fog was such as to prevent the engineer of the rear train from seeing the first train in time to stop, and that he approached the station cautiously and with the proper signals, then the negligence which produced the injury must be laid to those in charge of the first train; for it is quite clear that train was much behind time and did not send out the signal to the rear train as soon as under the rules it should have done. From a careful reading of the evidence we are of opinion that this is the proper and just inference to be drawn—and the question then arises whether the company would be liable. The plaintiff and all those employed upon that train, including the engineer and conductor, were fellow servants, and for an injury sustained by one of them through the negligence of another the common master is not responsible : I. C. R. R. Co. v. Cox, 21 Ill. 20; C. & A. R. R. Co. v. Keefe, 47 Ill. 108; C. & N. W. R. R. Co. v. Moranda, 93 Ill. 302; C. E. I. R. R. Co. v. Geary, 110 Ill. 383; Abend v. T., H. & I. R. R. Co., 111 Ill. 202.

But if it be assumed that there was such negligence upon the part of those who were in charge of the rear train as to be justly deemed the proximate cause of the injury, the question arises whether this is not one of the perils and hazard; incident to the employment, rvhich were to be anticipated by the plaintiff w'hen he entered the service of the company. The rule upon this subject has been so often stated and applied by the Supreme Court that an extended reference to the authorities is not necessary. Among others may be cited the case of Clark v. C. B. & Q. R. R. Co., 92 Ill. 43, where the plaintiff, an engine driver of one train, was injured through the negligence of the conductor of another train operated by another company on the samq road, and it was held the plaintiff could not recover against his employer. See also, W., St. L. & P. Ry. Co. v. Conkling, 15 Bradwell, 157. We think the rule is applicable here. To quote from the opinion in the Clark case, supra: “ Experience teaches that in no service do the employes always observe due care. In railroad, as well as other hazardous labor, every cautious person can not but anticipate that there may be omissions of duty on the part of employes that might expose co-employes to injury. Such are among the ordinary exposures, and if a party is not willing to assume such risks he must not engage in the service.”

The court in its instructions given for the plaintiff below, ignored the point as to the negligence of fellow servants, as well as the point whether the injury was not produced by causes incident to the service, and since the case turned upon these questions, this was error.

In our opinion, also, it was error to refuse the motion for a new trial upon the question of" fact.

The judgment is reversed and cause remanded.

Beversed and remanded.