text:
    Pelegie De Scheppers, Executrix, Appellee, v. Chicago, Rock Island & Pacific Railway Company, Appellant.
    Gen. No. 5,718.
    1. Ordinances—proof. Where an ordinance is declared on as entitled in a certain manner and a certified copy of an ordinance so entitled is introduced, the question is only whether there is proof of the ordinance substantially as pleaded where defendant introduces evidence that the title of the ordinance in question is not as pleaded and certified.
    2. Ordinances—what proof sustains declaration. Proof of an ordinance entitled “Ordinance regulating the speed of railway trains,” sustains an allegation in the declaration that the ordinance in question is entitled “Ordinance regulating the speed of railway trains and prescribing conditions of operation.”
    3. Ordinances—title. There is no requirement of law that an ordinance be entitled.
    4. Appeals and errors—bill of exceptions. An action of the trial court cannot be assigned as error in the Appellate Court where it is not shown in the bill of exceptions but' appears among the record entries certified by the clerk.
    5. Ordinances—publication. If an ordinance prescribes no penalty it is not necessary that it be published.
    6. Ordinances—validity where no penalty prescribed. An ordinance may be valid though it prescribes no penalty.
    7. Negligence—when crossing railway traclcs not, as matter of law. It is not negligence as a matter of law to attempt to cross railway tracks on a public highway in front of approaching trains.
    8. Contributory negligence—when for jury. If an engine which struck and killed a person who attempted to cross the track was running at a speed prohibited by ordinance or at a dangerous speed, the railway company may be said to have been acting at its peril and it is a question for the jury whether an ordinary prudent man would have discovered the danger where deceased started to cross the track after a freight train had passed on a track nearer him, when he might have seen the engine approaching and where he could have crossed in safety if it had been running at the speed prescribed by ordinance.
    9. Due care—instructions. In an action for wrongful death caused when deceased was struck by a railway engine defendant cannot complain of an instruction applied to the conduct of deceased defining “due care” and “reasonable care” as such care as a person of ordinary prudence and “skill” would exercise.

      Appeal from the Circuit Court of Rock Island county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 12, 1913.
    Jackson, Hurst & Stafford, for appellant; M. L. Bell, of counsel.
    J. T. & S. R. Kenworthy, for appellee.
   Mr. Justice Carnes

delivered the opinion of the court.

On August 15,1910, August DeScheppers was struck and killed by an engine of appellant on the crossing of Thirteenth street in the city of East Moline. He left surviving him a widow and four adult children. This action was brought against appellant to recover for the loss of next of kin and resulted in a verdict and judgment for $4,576, from which defendant below appealed. The declaration in different counts charged that the engine was run at a high and dangerous rate of speed; in a wrongful, heedless, reckless and wanton manner at a high and dangerous rate of speed without keeping any lookout or watch or paying any attention to said crossing or to persons who might be upon the same; and running in violation of an ordinance of said city, limiting the rate of speed to eight miles per hour. Appellant’s double tracks across Thirteenth street east and west at right angles with the street; the north track is used for west-bound and the south track for east-bound trains. Deceased was walking south on the west side of the street and as he reached the railroad right of way a freight train was going west. After the rear of that train passed him he went on to go across and had stepped upon the nearest rail of the south track when several men in that vicinity who saw an engine approaching from the west called out to him. He hesitated, looked toward them easterly, then looked west, apparently saw the engine and started to run diagonally southwest across the track and just as he was leaving the south rail he was struck by the engine and thrown forty or fifty feet, resulting in his instant death. Plaintiff declared on an ordinance entitled, “Ordinance regulating the speed of railway trains and prescribing conditions of operation.” She introduced in evidence, without objection, a certified copy of section 1 of an ordinance with the title as plead, limiting the rate of speed of such an engine to eight miles an hour. This copy was properly certified under section 14 of chapter 51 of our statute, and no reason is suggested why it was not at least prima facie evidence sustaining the count in the declaration. Defendants below, as a part of their evidence and on the theory that said proof of said ordinance was only prima facie and subject to rebuttal, called the city clerk who had certified to the copy in evidence and introduced proof tending to show that the title of the ordinance in question was not as plead and certified, but that it was 1 ‘ Ordinance regulating speed of railway trains,” without the words “And prescribing conditions of operation” which last mentioned words appeared in the title as plead. Some of this evidence was admitted by the court and some of it excluded. The court was not asked to strike out the certified copy of the ordinance from the evidence and no specific objection was made to it on the ground of variance from the ordinance plead. Defendants proceeded on the theory that their proof, heard and offered, overcame the prima facie evidence of the certificate that there was in force the ordinance plead. It is not necessary to determine whether the certified copy of the ordinance was only prima facie evidence of its existence. All the proof taken together showed that the ordinance existed with the question only as to its title, which may, or may not, have been exactly as plead. Had the question arisen on objection to the proof of the ordinance when offered, or on motion to strike it from the record on the ground that there was a varianee between the pleadings and proofs offered, such objection could have been easily met by amendment of the declaration, had the court been of the opinion that there was a variance; but as presented the question was only whether there was proof of the ordinance substantially as plead. We are of the opinion that had all the proof been admitted and had it been clearly shown thereby that the title as plead differed as above stated from the title proved, there was no material difference; that proof of an ordinance with the title indicted by defendant’s evidence and offer of evidence, sustained the allegation in the declaration. There is no requirement of law that an ordinance be entitled. Harris v. People, 218 Ill. 439; Chicago & E. I. R. Co. v. Hines, 82 Ill. App. 488. Even the style prescribed by statute may be departed from and the ordinance still valid. Law v. People, 87 Ill. 385; People v. Burke, 206 Ill. 358.

Appellants ’ counsel call our attention to a motion at the close of the evidence to withdraw from the consideration of the jury the count in the declaration in which this ordinance was plead and the action of the court in overruling- that motion. This action of the court is not shown in the Bill of Exceptions but appears among the record entries certified by the clerk of the court. It is familiar law that exceptions cannot be so preserved. Aden v. Road Dist. No. 3, 197 Ill. 220. But we are of the opinion that the motion did not present for the consideration of the trial court a question of variance between the allegations and the proof. The proof offered by defendants on this question also tended to show that the ordinance was not published in the manner certified by the clerk. So far as the record shows the ordinance prescribed no penalty for its violation. If it did not, it was not necessary that it be published and it was a valid ordinance though it prescribed no penalty. Chicago & E. I. R. Co. v. Hines, supra. We hold that the ordinance plead was substantially proven.

The proof compels the conclusion that' the engine in question was running at least fifteen miles an hour and would support a finding that it was running thirty miles an hour, therefore there is no question but appellants were running in violation of the speed ordinance of the city. A factory was located near the street crossing and it was a question for the jury whether, considering the proximity of this factory and the number of people that might be passing along the the street at this point, it was running at a high and dangerous rate of speed, or even in a reckless and wanton manner, without reasonable regard to the crossing and persons that might be upon the same. It is urged that the evidence does not show that deceased was in the exercise of ordinary care for his own safety, and that it is clearly a case of contributory negligence. As deceased approached the tracks from the north he was stopped by a freight train moving west; as soon as that train cleared the street he proceeded south to cross the two tracks which were located about eight feet apart. He saw, or might have seen, the approaching engine. There is some conflict in the evidence as to how far from him that engine was when he first might have seen it, but there is no doubt under the evidence had it been running at a speed of eight miles an hour, or even twelve, he had ample time to cross the tracks in safety. It is not negligence as a matter of law to attempt to cross railway tracks on a public highway in front of approaching trains. It is a question of how far distant the engine is and how fast it is approaching. A crossing would be perfectly safe with an engine approaching at eight miles an hour and highly dangerous with one approaching from the same point at thirty miles an hour. If the engine was running at a speed prohibited by ordinance, as it certainly was, or at a dangerous rate of speed, considering the locality, as the jury might well have found it was, appellant may be said to have been acting at its peril, and it was a fair question for the jury whether an ordinary prudent man in the situation of deceased would have discovered the high rate of speed and the consequent danger of attempting to cross in front of the engine. We are reminded by appellant that deceased was a man fifty-nine years old and had for some time been working in the factory near the place as superintendent and was no doubt familiar with the tracks and operation of trains thereon, but there can be no presumption indulged that engines had been there run in violation of the ordinance in question. It is rather to be presumed that the rate of speed at which this engine was running was unusual and more calculated to mislead a person familiar with the surroundings than one not acquainted therewith.

Complaint is made of an instruction offered by appellee defining the term “due care” and “reasonable care.” In that instruction the jury were told that it is such care as a person of ordinary prudence and “shill” would exercise, etc. The criticism is directed entirely to the use of the word “shill.” The jury were properly advised in an instruction read for appellants that “due care” and “ordinary care” is such as an ordinarily prudent person would exercise, etc. There is no question but this is the proper definition of ordinary care and it is true in this case that the question of ordinary care of the part of deceased was close enough to require accurate instructions in reference thereto, but we cannot see how defendants were harmed by an instruction advising the jury that deceased must not only have measured up to the standard of ordinarily prudent persons, but also to that of ordinarily skilful persons. No doubt a standard of ordinary prudence and skill is as high as one of ordinary prudence only, and a jury might properly consider it as demanding more care than merely prudent people ordinarily exercise. Therefore the court erred in prescribing too high a standard of care on the part of deceased, of which the defendant cannot complain.

The instructions using the words “due care” and “ordinary care” were all applied to conduct of the deceased at the time'in question under these instructions. The attention of the jury was not called to any question of due care or ordinary care exercised by or required of defendant.

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

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Carnes

license: Public Domain

text:
    Carl A. Johnson, Appellee, v. Peoria Railway Company, Appellant.
    Gen. No. 5,723.
    1. Evidence—when exctusion of testimony concerning a record not reversible error. Where plaintiff in an action for personal injuries is a militiaman, it is not reversible error to exclude testimony of the first sergeant of his company as to a report concerning him made by the hospital surgeon, where it is not stated what is expected to be proved by it and it does not appear that defendant was injured by its exclusion.
    2. Damages—what not excessive. A verdict for $700.00 is warranted where plaintiff was earning $3.00 per day and it seems that he was in bed eight days, that his left side was bruised, his ankle strained, one rib broken, and that he could earn only half pay for four months.
    Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Putebbatjgh, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 12, 1913.
    George W. Burton and George W. Black, for appellant.
    Weil & Bartley and Charles 3EL Francis, for appellee.
   Mr. Justice Carnes

delivered the opinion of the court.

Appellee was injured in August, 1910, while a passenger on appellant’s car, in or near Peoria, Illinois. He brought this action to recover for such injury and in June, 1912, had verdict and judgment for $700. We are asked to reverse the case on the grounds that the verdict is excessive and that the court erred in excluding testimony offered by appellant that would have been material, if at all, only on the question of the amount of damages. No other error is suggested.

At the time of his injury appellee was twenty-four years old; a resident of Woodstock/Hlinois; employed as a mechanic in the Oliver Typewriter Company’s factory there located; earning at piece work about $3 a day. He belonged to the state militia and was attending the state encampment at Peoria. He was hurt by being thrown or falling from one of appellant’s cars in a collision of two cars. He was taken to a hospital but soon removed from there to the Company’s quarters where he stayed about eight days. He testifies he was lying in bed during that time under the care of Mr. Brown, the Company cook, and attended by Dr. Burns, of Rockford, Illinois, unable to walk. His left side was bruised, ankle sprained and one rib broken; was able to earn only about half pay for abput four months, and at the end of that time quit his employment because he could not stand the work and went to Dakota where he had been farming up to the time of the trial; that he still suffered pain; was unable to lie on his left side, etc., and had incurred $50 expense for physician and medicine. He was corroborated in his statement, so far as it related to the eight days in Peoria, by Mr. Brown, Company cook, who took care of him, and by two comrades, Roser and Francis.

Appellant called Howard Howarth, first sergeant of the Company, who testified that appellee’s injuries were slight, some bruises and black and blue spots, but he was walking around the next morning and everyday during the encampment; was out drilling at different times and was at the mess tent three times a day. He further testified that there was a record or memorandum of any injuries to any boys in the Company kept at the time; that the memorandum was made at the hospital and after it was made he, as first sergeant, had charge of it; that it was made by the hospital surgeon and that he saw entries therein with respect to appellee; that in November, 1910, this record was in his care as first sergeant in his desk in the armory at Woodstock when the armory caught fire and the record was burned and destroyed; that he read the record with respect to the injuries sustained by appellee. He was then asked (Q) “Tell what the record said with respect to the injury, as near as you can recollect.” Objection by plaintiff as incompetent, no proper foundation laid, and record made by someone else. The court sustained this objection. The witness then stated that the record was signed by Major Borand and the court sustained an objection to the further question whether it was signed by anybody else. No other or different evidence was offered or heard on the question of the extent of the injury. It may be that the contents of this record was competent evidence in this case under the authority of People v. Joyce, 154 Ill. App. 13, and authorities there cited, but the action of the trial court in excluding the evidence offered was not reversible error. It is not shown that the evidence would have been beneficial to appellant. If the record had been proven it might have sustained appellee’s contention as to the extent of his injuries. It does not appear that appellant was injured by the refusal of the evidence. The court should have been informed in some appropriate way of what was expected to be proved by the record. Lucas v. Beebe, 88 Ill. 427; Chicago City Ry. Co. v. Carroll, 206 Ill. 318; Martin v. Hertz, 224 Ill. 84; Court of Honor v. Dinger, 123 Ill. App. 406; Stevens v. Newman, 68 Ill. App. 549.

The testimony offered °by appellee as to the extent of his injury, if believed by the jury, certainly warranted as large a verdict as he received. They would hardly have been justified in discrediting that testimony because of the contradiction of four witnesses by the one witness introduced by appellant. It is argued that plaintiff’s case is discredited by the fact that he did not call the physicians that attended him.. The record shows that these physicians lived at a considerable distance from the place of trial. The necessary expense of procuring their attendance at the trial may account for their absence.

"We find no reversible error and the judgment of the trial court must be affirmed.

Affirmed.


author: Mb: Justice Carnes

text:
    Sue M. Simpson, Appellee, v. Peoria Railway Company, Appellant.
    Gen. No. 5,728.
    1. Carriers—injury to passenger from starting car. Plaintiff testified that a street car suddenly started as she was alighting -therefrom, and she fell, etc. The conductor testified that she had taken one step from the car when she fell. Another passenger stated that the power seemed to be applied a little quickly and almost simultaneously with the fall. Held, that the evidence tending to show severe injuries, due to a fall more violent than from the pavement, judgment on verdict for plaintiff would be affirmed.
    2. Evidence—expert opinion based on portion of testimony. Where the opinion of a medical expert witness as to the probable permanency of plaintiff’s injuries is objected to on the ground that it “invades the province of the jury,” and the court’s attention is not called, by special objection, to the fact that such expert has not heard all of plaintiff’s testimony, his opinion being grounded on the assumption that such testimony is true, nor a general objection made, the admission of such opinion will not be held error.
    3. Appeals and errors—hypothetical question not specially objected to. Under the rule that a court of review will not consider any other ground for exception than that urged in the court below, a special objection to an improper basis for a hypothetical question, which was not made in the trial court, cannot be insisted upon on appeal.
    4. Damages—refusal of physical examination. The defendant in case for personal injuries has the right to ask plaintiff on the witness stand if she will submit to a physical examination by a physician in defendant’s employ in the presence of her own physician, and thereby receive the benefit of informing the jury of her refusal, and the jury may consider Such refusal on the question of the amount of damages.
    5. Instructions—altering “when a witness has sworn falsely," etc. The injection of added elements in the instruction regarding the maxim “falsus in uno, falsus in omnibus,” as commonly given and often approved by the courts, such as “wilfully exaggerating any facts,” and qualifications, such as “which you believe,” after the clause “corroborated by other evidence,” is bad, and even when the additions are most accurately formulated, of doubtful propriety, and liable to cause misapprehension.
    6. Damages—instructions as to refusal of physical examination. Under the rule that it is improper for a court in instructing a jury to single out any particular item and give it special prominence and emphasis, an instruction, that the refusal of plaintiff to submit to a physical examination by defendant’s physician may properly be considered by the jury, should be refused.
    7. Damages—measure for personal injuries. The instruction to the jury, as to the measure of damages in case for personal injuries, copied in full in Street R. R. Co. v. Brown, 193 Ill. 274, and often approved, does not mislead the jury by warranting their basing damages on some condition of plaintiff, not resulting from the accident in suit, and is not reversible error in a close case where another instruction requires plaintiff to show by the preponderance of the evidence that the alleged negligence was the proximate cause of the injury.
    8. Damages—measure of, for aggravated ills. Where previous diseases are aggravated by an accident, the measure of damages is the injury which results, though such injury may not have followed but for such peculiar physical condition of plaintiff.
    9. Evidence—credibility of exaggerating witness. Jurors and physicians are not required to disregard all statements made by a person injured, because, in her recital of symptoms, many exaggerated, absurd and untrue things are interspersed.
    10. Practice—argument of counsel not inflammatory. The remark of plaintiff’s counsel in his final argument to the jury, “In cases of this kind there is a tendency not to hold corporations to strict enough accountability,” was excepted to and immediately withdrawn, and the court instructed the jury orally that such remarks were improper and should be disregarded. Held, not prejudicial to defendant.
    11. Damages—verdict for $Z,600 not excessive. Plaintiff, a woman 63 years of age, was injured in falling off a street car, before which accident she claimed to have been practically well. Injuries were testified to by her .to sight, hearing, heart, back and internal organs, and impairment of mind. Other evidence showed that she had ailments previously and that she exaggerated symptoms. Held, that a verdict for $2,500 would not be disturbed.
    Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Putekbaugh, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 12, 1913.
    Pinkney & McRoberts, for appellant.
    Kirk & Shurtleee, for appellee.
   Mb: Justice Carnes

delivered the opinion of the court.

Appellee, Sue M. Simpson, was on July 10, 1911, at about six o’clock p. m., injured by a fall on a paved street in Peoria, Illinois, as she was getting off the ear of appellant on which she had been riding. This action was brought to recover damages for injuries so sustained, and resulted in a verdict and judgment of $2,500.

The negligence alleged in the declaration is the causing of the car to be suddenly started without notice or warning as appellee was alighting from the same, and without giving her sufficient opportunity to leave the car in safety.

The defense offered was that she did not fall while alighting from the car, but reached the street in safety and took one step from the car when she fell on the pavement. The conductor of the car and one passenger were the only witnesses, other than appellee, to the occurrence. Appellee testified that she was leaving the car at the rear and while she had one foot on the step and the other raised in the act of alighting, the car started suddenly and she was thrown violently to the ground. The conductor testified that he was on the rear platform; saw her leave the car and that she was safely on the pavement and had taken one step away from the car when she fell. The passenger testified that he got off the front end of the car and just as he reached the street he heard somebody’s feet catch on the lower step of the car at the rear and immediately some one fell out into the street; that the car was standing still when he got off, but there was a little jerk as if the power had been applied a little quickly and almost simultaneously with the fall.

The case was tried in March, 1912, and appellee in her testimony stated that she was sixty-three years old, practically well before the accident; that since then she had been a total wreck and she gave a detailed account of her injuries to sight, hearing, heart, back and internal organs of her body as well as of impairment of mind that, if believed, justifies the term “total wreck.” There is no doubt that she, in her testimony, greatly magnified her ailments, also overstated the good condition of her health before the accident. We conclude she is a nervous person, much given to exaggeration in her speech, and that her evidence as to the manner of the accident and her condition before and after it should be taken with a great deal of allowance. But there is other credible evidence in the case that compels the conclusion that she was severely injured when she fell into the street. There is no attempt to account for her fall by showing any condition of the place that would make it seem likely she would have fallen so violently if she had been standing on the pavement at the time. The lower step of the car was one foot from the street and the evidence of the extent of the injury tended to prove that she fell from that step instead of falling after she reached and was finally standing on the pavement. The testimony of the passenger who saw the accident also tends strongly to show that she fell from the step of the car and that the fall was occasioned by the sudden starting of the car. It was a fair question for the jury under this evidence, even disregarding appellee’s testimony, whether the allegation of negligence in her declaration was sustained by the proof, and while the testimony of appellee as to many matters in controversy seems to us improbable, subjecting her whole evidence to much suspicion, still we cannot say that the jury were not warranted in giving some credit to her testimony. They saw her, heard her testify and with the trial judge who approved their verdict had better opportunities than we possess to determine how much credence to give her statements. It is a matter of common knowledge that many people of highly nervous temperaments grossly and absurdly magnify and over-state their own ailments and injuries, and at the same time are not entirely untrustworthy. Physicians could hardly adopt a rule of disregarding all statements made by a patient because he, or she, interspersed in the recital of symptoms many things untrue and absurd.

But it is insisted by appellant that there is no credible evidence that appellee sustained more than the temporary injuries, and that the verdict of $2,500 is excessive. Had she sustained the injuries that she herself testified to, she would have been entitled to recover the whole amount of the ad damnum $10,000. If the jury had believed her statements they would have found a much larger verdict. If she was suffering from some of the disorders complained of before the injury, as the evidence shows she was, still, if injured by the negligence of appellant, she is entitled to recover for any additional suffering inflicted upon her because of her previous physical or diseased condition. If before the injury she had diseases, which were aggravated by the fall, appellant is liable for what resulted from the fall. City of Rock Island v. Starkey, 189 Ill. 515. The measure of damages is the injury which results, though this injury may not have followed but for the peculiar physical condition of the person injured. Chicago City Ry. Co. v. Saxby, 213 Ill. 274.

She was attended by two apparently reputable physicians immediately and for a considerable time after the accident who testified fully in the case. One of them had treated her shortly before that time, and if their testimony as to her physical condition after the accident, compared with her condition before, was believed by the jury, the verdict w&s not excessive. Appellant introduced testimony of medical experts that a part of the ailments shown by the testimony of appellee’s physicians could not have been produced by a violent fall on the pavement. Giving full credence to this testimony, the jury were justified in finding that a serious injury resulted from the fall, warranting substantial damages. The evidence, other than appellee’s own testimony, quite clearly shows that her physical condition was in many respects much worse immediately after the accident than it was before, and so continued up to the time of the trial, and no reason is shown other than the accident for this change in condition.

Considering the many elements involved in measuring the damages in such cases, and the latitude given juries in awarding damages, we do not see how we can disturb this verdict as excessive.

One of plaintiff’s attending physicians was called by her as an expert and stated that he had heard most of her testimony and was asked to tell the jury with reference to the testimony that he had heard what, if any, injuries she has that are likely to be permanent. Defendant objected “to the form of the question as invading the province of the jury in passing upon a question the jury is to pass upon.” The court allowed the question to be answered on the statement of the doctor that he was giving his opinion assuming the hypothesis “that her testimony is true,” and the doctor answered as to several of the conditions that they would, in his opinion, be permanent. He after-wards stated that he reached the same conclusion from his examination and treatment of the plaintiff, except as to one item which he stated he answered on the theory that her testimony was true. It is no doubt true, as contended by appellant’s counsel, that the opinion of an expert cannot be grounded on the assumption that the testimony of a witness is true where he has heard only part of the testimony and had there been a general objection to this question, or an objection on the ground that he had heard only part of the testimony, it would have been error for the court to permit the answer, but the court’s attention was, by the special objection, directed to the question whether the evidence would invade the province of the jury. There is no doubt physicians may in answer to proper questions give opinions as to the permanence of injuries in question. Such opinions are requested and given without question in most personal injury cases. The same objection was made to a question asked of an expert physician in Chicago Union Traction Co. v. Roberts, 229 Ill. 481, and it was there said, “If it was thought the basis for the hypothetical question was improper, the objection should have been pointed out so that the improper matter might have been eliminated. The special objection not having been made on the trial cannot be insisted upon here,” citing Elgin, A. & S. Traction Co. v. Wilson, 217 Ill. 47, where it is said, “The rule is that a court of review will not consider any other ground of objection than that urged in the court below.”

Because of the apparent untrustworthiness of appellee’s personal testimony, appellant complains that it was much prejudiced by the refusal of the following instructions:

“The Court instructs the jury, that if you believe from the evidence, that any witness has wilfully or knowingly sworn falsely to any material element of the case, or that any witness has wilfully or knowingly exaggerated any fact or circumstance material to the issues in the case, for the purpose of deceiving, misleading or imposing upon the jury either as to the nature and extent of the alleg’ed injury or as to the manner of the alleged accident in question, then the jury have a right to reject the entire testimony of such witness, except in so far as corroborated by other evidence which you believe, or by facts and circumstances appearing in the case.”

The court had, at the instance of the plaintiff, instructed the jury as follows: “The court instructs the jury that if you believe from the evidence that any witness or witnesses who testified in this case have wilfully and knowingly testified falsely concerning the material matter in issue in this case, then you have a right to disregard the entire testimony of such witness or witnesses in so far as you may believe it to be false, unless the same be corroborated by other facts and circumstances appearing in evidence.”

This instruction given for the plaintiff was in form commonly given and often approved by the courts. The instruction offered by defendant and refused added the element of wilfully or knowingly exaggerating any fact or circumstance material to the issue, and qualified the words, “corroborated by other evidence” by the clause, “which you believe.” This latter qualification was held bad in Chicago & A. R. Co. v. Kelly, 210 Ill. 449, and the ejection of the element wilful and knowing exaggeration, has been criticized in the Appellate Courts. Sedoof v. Chicago City Ry. Co., 124 Ill. App. 609, and cases there cited.

The instruction given by the court sufficiently advised the jury as to the maxim falsus in uno, falsus in omnibus, and the court did not err in refusing the other instruction. “Such an instruction, even when most accurately formulated, is of doubtful propriety, and certainly it should never be given unless most accurately worded, to prevent misapprehension.” Freeman v. Easly, 117 Ill. 317.

The court at the instance of plaintiff, gave an instruction on the measure of damages substantially like the one copied in full and approved in Cicero & P. St. Ry. Co. v. Brown, 193 Ill. 274. This instruction has been repeatedly approved by the courts. Chicago Terminal Transfer Ry. Co. v. Gruss, 200 Ill. 195, and several other cases. It is argued by appellant that this instruction might be understood by the jury to warrant basing damages on some condition of the plaintiff not resulting from the injury in question, and Chicago Union Traction Co. v. Miller, 212 Ill. 49, is cited to the point that an instruction open to that objection in a close case is reversible error. The instruction complained of does not fall under the criticism made in the Miller case, supra, and if it did it might be said here, as in the Miller case, that there was another instruction given in which the jury were told that plaintiff must show by a preponderance of the evidence that the alleged negligence if proved, was the proximate cause of the injury to her, and therefore the instruction read could not mislead the jury.

"While a witness, appellee was asked by appellant’s counsel if she would submit her injuries to an examination by a physician in the employ of appellant in the presence of her own physicians and she refused. Appellant asked an instruction that it had a right to ask and she had a right to refuse such an examination and that the question of her refusal was proper to be considered by the jury. The court refused this instruction and it is claimed that he erred in so doing. Appellant on the trial had the benefit of the request and the refusal. It has been doubted whether it is permissible to even ask such a question, but there is a line of authorities sustaining the position that a defendant has the right to, in that way, inform the jury that the plaintiff will not submit to a physical examination of injuries claimed, and that the jury may consider such refusal on the question of the amount of damages. These authorities probably correctly hold the law on the subject. At any rate, the defendant had the full benefit of all they allow,

But admitting the request and refusal as evidence to be considered by the jury, as the court did in this case, the instruction was properly refused as> violating the rule that particular items of proof must not be pointed out to the jury in the instructions in a manner that especially emphasizes those matters. Defendant offered in evidence a photograph of the plaintiff walking to the court room, apparently showing her in good physical condition; that was also evidence for the consideration of the jury, but it certainly would have been error for the court by an instruction, to have directed the attention of the jury to that photograph and told them they might consider it as evidence. The principle is the same. All evidence offered and admitted by the court was proper for the consideration of the jury, and it is not proper to single out any particular item and give it special prominence before the jury.

Plaintiff’s counsel in his final argument to the jury said, “In cases of this kind there is a tendency not to" hold corporations to strict enough accountability.” Defendant’s counsel objected and excepted to the statement as improper and inflammatory. Plaintiff’s counsel immediately withdrew the remark and asked the jury to disregard it and the court instructed the jury orally that such remarks by counsel were improper and that they should disregard them. It does not appear in what connection the remark was made, and it seems improbable and practically impossible that the jury should have been influenced by the proceedings in that connection to the detriment of the defendant.

It would seem more probable that the occurrence would have prejudiced them against the plaintiff. The remark was not one of a character to be considered likely to influence the jury, notwithstanding its withdrawal and the oral instruction of the court to disregard it.

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

Affirmed.


text:
    Georgia Slocum, Appellee, v. Peoria Railway Company, Appellant.
    Gen. No. 5,732.
    1. Carriers—stopping car at unsafe place. "Where the gravamen of the charge in a declaration is that the defendant street railroad company did not furnish the plaintiff, while a passenger, a safe place to alight, but negligently directed her, on a dark night, to alight at an improper and dangerous place, which it knew, or might with reasonable care have known was unsafe, and that she, while using due care for her own safety, in stepping from the car, had her ankle turned by reason of the rough and broken condition of the street, causing her to fall and be injured, etc., a cause of action is averrrd.
    2. Carriers—stopping car at unsafe place. A street railway company, having the right to select the place at which a passenger is to alight, must select a safe place, and while it may not be responsible for the condition of a street, unless it be between or - in the immediate vicinity of its tracks, it is liable to a passenger, injured, without his own fault, in consequence of its stopping a car for passengers to alight at an improper or dangerous place, which it knows, or should know, with reasonable care is unsafe, especially when no warning is given the passenger.
    3. Carriers—stopping car at unsafe place. Where a passenger is induced to alight from a street car in darkness, at a place where the street is being repaired and in a rough and unsafe condition, and steps from the car on a loose brick and is injured in falling, before she is clear of the car and while still a passenger, the company is liable for negligence in causing her to alight at an unsafe place, and there is no question of proximate cause.
    Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbattgh, Judge, presiding. Heard this court at the October term, 1912.
    Affirmed.
    Opinion filed March 12, 1913.
    Pinkney & McBoberts, for appellant.
    Clarence W. Heyl and Shelton F. McGrath, for . appellee.
   Mr. Justice Carnes

delivered the opinion of the court.

Appellee, Georgia Slocum, was in the evening of December 29, 1911, a passenger on a street car of the appellant company in Peoria, Illinois; she was going home and desired to alight at the crossing of Armstrong avenue; that crossing was paved, but the street on which the car was proceeding was beyond that point in a rough condition occasioned by work that had been done thereon and suspended previous to this time because of freezing weather; she told the conductor she wished to alight on Armstrong avenue but he ran the car fifty feet or more past the avenue to a siding and then stopped; she and two or three other passengers then got off the car at the invitation of the conductor and in his presence; it was dark, the ground was frozen and uneven and the distance from the lower step of the car was greater than if it had been standing at the intersection of the street on the pavement; as she stepped down one foot struck on a brick or chunk óf frozen earth turning her anide; she fell to the ground receiving an injury to the ankle from which she had not entirely recovered at the time of the trial in May, 1912. The street was not lighted at the avenue crossing or at the point where the accident occurred. She did not know when she stepped from the car whether she was at the crossing or not, and was not warned by any one of any danger of alighting at that place. The street at that point had for some time been in a rough condition that was or should have been known by appellant. The case was tried on a declaration averring the facts substantially as above stated without much controversy about them in the evidence, and resulted in a verdict and judgment for $460. Appellant proved on the trial that the part of the street on which appellee stepped from the car was outside of the strip which it was required by ordinance to keep in repair, and urges here that it is therefore not liable for the injury and that it was not actionable negligence to run past the street crossing before stopping to permit appellee to alight. It is also insisted that the declaration did not state a cause of action and is bad on motion to arrest. These questions are properly preserved for our consideration. The declaration charges a duty of defendant to furnish plaintiff a reasonably safe place in which to. alight, that it was dark and the car stopped at a place where the condition of the street was dangerous and unsafe, that the defendant negligently directed plaintiff to alight at that place and that it knew or by the exercise of reasonable diligence could have known that it was dangerous and unsafe. These allegations of duty and negligence were coupled with the averment that the defendant negligently ran by the street crossing; that was only descriptive of the situation. The gravamen of the charge is that appellant did not furnish appellee, its passenger, a safe place to alight from its car, but invited her to alight at an unsafe place and one which it knew or might with reasonable care have known was unsafe, and that she while using due care for her own safety in stepping from the car stepped upon a portion of said street which was in such a rough and broken condition as to cause her left ankle to turn, etc.

It is not material whose duty it was to keep the streets in proper condition. If appellant knew or should have known that the street was unsafe, it was its duty to warn its passengers of the fact, and if necessary stop its car at some other place that was safe. The substance of the charge is not that appellant failed to stop at the crossing or failed, to keep the street in repair but that it invited appellee, its passenger to alight in an unsafe place. If there had been a deep excavation in that part of the street known to appellant and it had stopped its ear at the brink and invited or even knowingly permitted its passengers to there alight, it would hardly occur to anyone that it could base a defense on the fact that it was in no way responsible for the condition of the street. “While a street railway company may not be responsible for the condition of the street, unless it be between or in the immediate vicinity of its track, yet it will be liable to a passenger injured without his own fault, in consequence of stopping its car for the passenger to alight, at an improper or dangerous place, especially where no warning of the danger is given to the passenger.” Thompson on Negligence, Vol. 3, sec. 3525. A carrier “having the right to select the place at which the passenger is to alight, it must select a safe place.” West Chicago St. R. Co. v. Buckley, 102 Ill. App. 314. “A. street railway company is not responsible for the condition of the streets on which it operates its cars, but it is bound to exercise proper care to stop its cars for the discharge of passengers at a safe and suitable place for that purpose.” Stewart v. St. Paul City Ry. Co., 78 Minn. 110. The declaration stated a cause of action and is supported by the evidence.

It is argued that the act of the defendant was not the proximate cause of the injury. There are some reported cases where the act complained of was carrying the passenger beyond his destination and he was injured in returning by the negligence of some third party. That condition raises that question, but here appellee was injured before she was clear of the car, while she was still a passenger, by the negligence of appellant in causing her to alight at that place; there is no question of proximate cause here. Appellant offered and the court refuse instructions embodying its view of the law as-heretofore stated and held untenable. The court did not err in refusing these instructions.

Finding no error in the record the judgment is affirmed.

Affirmed.


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    Henry Mier, Appellee, v. Chicago, Milwaukee & St. Paul Railway Company, Appellant.
    Gen. No. 5,735.
    1. New trial—newly discovered evidence. The fact that a witness by whom alleged newly discovered evidence would have been given resides far away from the place of trial, tends to support defendant’s affidavit, on motion for new trial, that he did not know of the evidence and in the exercise of diligence could not have known of it:
    2. Appeals and errors—when judgment reversed. In an action for damage to race horses from taking cold while held in a car over night, a judgment for plaintiff will be reversed and remanded where a careful examination of the entire record convinces the court there should be an opportunity for further investigation.
    3. Bailment—when "bailee of horse may recover for injury. Plaintiff is entitled to recover for injury to a horse which he has as bailee under a lease from the owner.
    4. Carriers—bill of lading. A bill of lading on which horses injured were shipped is inadmissible when not properly identified.
    Appeal from the Circuit Court of Bock Island county; the Hon. William: H. Gest, Judge, presiding. Heard in this court at the October term, 1912.
    Beversed and remanded.
    Opinion filed March 12, 1913.
    William A. Meese and Frank J. Landee, for appellant.
    J. T. & S. B. Kenworthy, for appellee.
   Mr. Justice Carnes

delivered the opinion of the court.

This is an action in assumpsit, brought to recover damages alleged to have been sustained by injury from taking cold, etc., of two horses “May C,” a pacing mare owned by appellee, and “Kittie B,” a running mare owned by John Looney, and under lease to appellee, while in the yards of appellant at Davenport, Iowa, on the night of September 4, 1908, in a ear where they were wrongfully held by appellant that night because of a misunderstanding as to payment of freight. The suit was begun December 22, 1908, the damages laid at $2,000 and afterwards by amendment reduced to $1,999. John Looney, the owner of ‘ ‘ Kittie B” is an attorney at law and filed the praecipe and declaration in the case. The general issue was filed and the case tried with a jury in November, 1911, resulting in a verdict and judgment for the full amount of the ad damnum.

It is admitted by appellant’s attorneys that it is liable for at least nominal damages, and a new trial is here urged mainly on the ground that the damages are excessive and that the court erred in not granting a new trial because of newly discovered evidence. The claim of appellee is that the mare “May C” was five years old; had been trained and driven three seasons by him and his men; that she had never won a race, but had been held back in races to prevent her getting a mark; and was very valuable as a racing-prospect; that because of injuries resulting- from her treatment and exposure on the night in question she became disabled and of no value as a race horse, and was thereafter only valuable as a driver. Her value before that night is placed by the testimony of appellee at $3,000 or more and after at $500 or $600. The damage to “Kittie B” is claimed to be about $500; therefore about $1,400 or $1,500 of the verdict must be placed on damages to “May O.” Appellee’s evidence, considered alone, fairly established his claim. But it appears from appellant’s evidence, uncontradicted and unexplained, that appellee sold “May C” November 10, 1908, for $750 to E. B. Elliott & Co. of Madison, Wisconsin; that they kept her about a year and until after they got through racing in the fall of 1909; that they bought and used her as a racing horse, and that she was in fine condition all that time. This fact compels the conclusion that'appellee and his witnesses were mistaken as to the extent of the injury sustained by “May C” on the night in question.

The claim of newly discovered evidence, presented by appellant on its motion for a new trial is that on October 27, 1908, appellee advertised “May C” for sale in The Horse Review, a newspaper published in Chicago, Illinois, as a race horse. And that the reason for his not driving her in races at different Fair Grounds shortly after September 4, 1908, was that he had been suspended from the American Trotting Association for non-payment of dues, and not because the mare was disabled as he, in his testimony as a witness stated. The witnesses by whom it is alleged this testimony would be given resided so far away from the place of the trial that there is much reason in support of appellant’s contention and affidavit that it did not know of this evidence and in the exercise of diligence could not have known of it. But independent of this question of newly discovered evidence, in the language of our Supreme Court in Wilder v. Greenlee, 49 Ill. 254: “A careful examination of the entire record, has left us with a firm conviction that there should be an opportunity given for a further investigation. ’ ’

It is objected that appellee could not recover for the injury to “Kittie B” because he was not her owner. He had her under lease and his right as bailee to recover can hardly be questioned. Chicago & N. W. R. Co. v. Shultz, 55 Ill. 421. It is also objected that the court refused to admit in evidence the bill of lading on which the horses were shipped. Appellee’s answer is that the paper was not properly identified when offered in evidence by appellant, and the record seems to sustain him. ■ ■

The judgment is reversed and the ease remanded for a new trial.

Reversed and remanded.


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    W. Arthur Latham, Appellee, v. Cleveland, Cincinnati, Chicago, & St. Louis Railway Company, Appellant.
    Gen. No. 5,740.
    1. Iustbuctions—reference to declaration. An Instruction that the questions involved as alleged in the plaintiff’s declaration, except the second and third counts thereof, of negligence on the part of defendant, and the exercise of reasonable care and control of plaintiff’s property, are what are known as questions of fact, which it is the duty and province of the jury to determine under the law and evidence in the case, is not erroneous in referring to the declaration.
    2. Automobiles—allegation of due care. In an action for damage to an automobile resulting from a collision, an allegation that plaintiff by his agent was driving said automobile with due care and diligence is a sufficient allegation of due care.
    3. Automobiles—instructions as to conduct of chauffeur at time of collision. In an action for damage to an automobile resulting from a collision, an instruction directing the attention of the jury to the conduct of the chauffeur at the time of the accident to determine whether plaintiff was in the exercise of due care is proper.
    4. Automobiles—when education and training of chauffeur is not at issue. In an action for damage to an automobile resulting from a collision, it is improper to instruct the jury that one of the issues is whether the chauffeur was competent and that the burden of proof is on plaintiff to show that he is.
    5. Automobiles—whether chauffeur exercised due care. In determining whether a chauffeur was in the exercise of due care at the time of a collision it is immaterial whether he was educated or uneducated in the business.
    6. IusTBUCTioiirs—reference to declaration. Instructions should not refer the jury to the declaration to determine what the issues are.
    7. Iustbuctiohs—where one count does not state complete cause of action. It is error to instruct the jury that plaintiff is entitled to recover if he has proved any one count of his declaration where there is one count that does not state a complete cause of action.
    8. Iustbuctiohs—as to obstructing highway. An instruction as to the effect of obstructing a highway “as" charged in the declaration” is not erroneous because of such reference to the declaration.
    9. Automobiles—contributory negligence. Where an instruction as offered directs a verdict for defendant if the jury believe plaintiff was violating Seá 10 of the "Motor Vehicle Law” it is properly modified so as to provide that such negligence must have contributed to the injury.
    10. Negligence—violation of statutory regulations. While the disregard of statutory regulations by defendant as to speed of trains, giving signals, etc., is negligence per se, yet proof of such negligence does not entitle plaintiff to recover, without further proof that it caused the injury complained of.
    11. Evidence—burden of proof. The burden of proving that defendant’s negligence in violating a statutory regulation caused the injury is on the plaintiff.
    Appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 12, 1913.
    Rehearing denied April 3, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    W. E. Hunter, for appellant; Glennon, Cart, Walker & Howe, of counsel.
    Cooper & Hobbie, for appellee.
   Mr. Justice Carnes

delivered the opinion of the court.

This is an appeal from the second jury trial in this case. A statement of the pleadings and evidence in the first trial is found in 164 Ill. App. 559. The pleadings have not been changed and the evidence shows the facts as recited in that opinion, except the track crosses the street at the point in question from northwest to southeast instead of northeast to southwest as there stated. The law as to the measure of damages announced by this court in that opinion was followed. No instruction was given based on proof of “the allegations contained in one or more counts of the declaration.” The second instruction which we there criticise as an a tract proposition of law was changed by directing it specifically to the crossing in question. No material error in admitting or refusing evidence is pointed out, but it is urged that the court erred in giving instructions for the plaintiff and in modifying two of the twenty-eight instructions read for the defendant.

The first of plaintiff’s instructions given read, “The Court instructs the jury that the questions involved herein, as alleged in the plaintiff’s declaration, except the second and third counts thereof, of negligence on the part of the defendant, if any, and the exercise of reasonable care on the part of those in charge and control of the plaintiff’s property, if any, are what are known as questions of fact, which it is the duty and province of the jury to determine under the law and the evidence in the case.” Substantially the same instruction was approved in Chicago & J. Elec. Ry. Co. v. Patton, 219 Ill. 214, and has been approved in several other cases in our Supreme and Appellate Courts. But it is argued that it is bad in this case, because it sends the jury to the declaration to determine what negligence, if any, was alleged, and it is said that the first count in the declaration is bad in not alleging due care on the part of the plaintiff at the time in question. The allegation in that count is: “And while plaintiff, by his agents, with all due care and diligence was driving said automobile on Hobbie avenue across said right of way.” It is insisted that this is not equivalent to an allegation of due care on the part of the plaintiff and suggested that the plaintiff might not have been in the exercise of due care in the selection of his chauffeur. Some evidence was introduced on the question of the training of the chauffeur, and the court,, at the instance of appellant, instructed the jury that one of the issues in the case was whether he was a competent chauffeur and that the burden of proof was on plaintiff to show that he was. There was, in our opinion, no such issue in the case. The question was whether the chauffeur at the time and place was in the exercise of due care. If he was up to that standard, it is entirely immaterial whether he was educated or uneducated in the business. If he was not, it is quite as immaterial that he may have been the best educated and most skilful of chauffeurs. The plaintiff himself was not present at the time of the accident and there is no suggestion that anything he did, or failed to do other than hiring Dole, the chauffeur, had any influence on the occurrence. The court at the instance of appellant instructed the jury that the acts and conduct of the chauffeur were the acts of the plaintiff, and if the collision occurred by reason of the lack of due diligence on the part of the chauffeur, the plaintiff could not recover. Under the evidence in this case the court properly directed the attention of the jury to the conduct of the chauffeur at the time of the accident to determine the question whether the plaintiff was in the exercise of due care. It is not error to refer to the declaration in instructions to the jury. It is common practice to refer in instructions to various matters “as claimed in the declaration.” It is true, as held in Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544; Devaney v. Otis Elevator Co., 251 Ill. 29, and Cantwell v. Harding, 249 Ill. 354, that the jury should not be sent to the declaration to determine what the issues are, and that it is error to instruct them that the plaintiff is entitled to recover if he has proved any one count of his declaration in cases where there is one count that does not state a complete cause of action. And it is also true that it is ordinarily useless to refer the jury to the declaration; that, in practice, the declaration is often not sent to the jury room, and almost never read to them; that if it was they would not very well understand it. But in this state .the practice has been so long and firmly established of qualifying many phrases in instructions by the words, “as charged in the declaration” that error cannot be predicted on that qualification until the law in that respect is changed. Plaintiff’s fourth instruction read: “You are instructed by the Court that the defendant had no right to obstruct a public hig’hway by stopping any train, or by leaving any car or locomotive engine standing on its track, where the same intersects or crosses such public highway, except for the purpose of receiving or discharging passengers or freight, or for taking in or setting out cars, or to receive the necessary fuel and water, and in no case to exceed ten minutes for each train, car or locomotive engine. And if you believe from a preponderance of the evidence that the defendant did so obstruct a public highway, as charged in the declaration, and that by reason of said obstruction and as the proximate result thereof, plaintiff’s property was injured as charged in the declaration, and if you further believe from a preponderance of the evidence that plaintiff’s employe, in charge of plaintiff’s automobile, was at all times in the exercise of ordinary and reasonable care for the safety of said automobile, then and in that case you will find for the plaintiff.” This instruction is attacked on the ground that it sends the jury to the declaration to ascertain what obstruction is there charged, and it is said that there is no charge in the declaration that appellant obstructed public travel. The seventh count charged obstructing a public highway in violation of the statute, substantially as stated in the instruction and averred that in so doing appellant obstructed view and hearing, but that averment did not lessen the force of the allegation of obstructions in violation of statutory provisions, and left the court very properly to instruct the jury what those provisions are, and if appellant did so obstruct the street and it was the proximate cause of the injury, and the plaintiff' was at the time in the exercise of due care as stated in the instruction, we see no reason why a verdict for plaintiff would not necessarily follow. Other of plaintiff’s instructions are objected to for reasons that, so far as they seem important to us, have been answered above. We find no material error in plaintiff’s instructions. The court modified an instruction for appellant by inserting the words enclosed in parenthesis, so that it read as follows: “The statute of this state provides that no person shall drive an automobile upon any public highway at a greater speed than is reasonable and proper, having regard to the traffic and the use of the ways, or so as to endanger the life or limb, or injure the property of another, and if you believe from the evidence that the automobile in question at the time of the collision, was being driven at a greater speed than was reasonable and proper, having regard to the traffic and use of the street at the place in question, or was driven so as to endanger the life or limb or injure the property of another (and that thereby the driver of the automobile contributed to the injury complained of), then under the law you should find the defendant not guilty?” It is urged that there was material error in refusing the instruction as asked and in its modification as read. The instruction as offered directed a verdict for defendant, if the jury believe from the evidence the plaintiff was at the time of the collision violating the provisions of Section 10 of the “Motor Vehicle Law” then in force. We held on the former hearing of this case that it was immaterial whether the chauffeur wore a badge in sight as required by the statute, as the location of the badge in no way contributed to the accident. It is settled law in this state that while the disregard of statutory regulations by defendant as to speed of trains, giving of signals, etc., is negligence per se, still proof of such negligence does not entitle the plaintiff to recover without further proof that it caused the injury complained of. Chicago & R. I. R. Co. v. McKean, 40 Ill. 218, and many cases cited and following that case.

The burden of proof is on the plaintiff to show the neglect caused the injury. Quincy, A. & St. L. R. Co. v. Wellhoener, 72 Ill. 60. The Supreme Court has applied this principle to the plaintiff, as well as the defendant, and held in the case of an engineer killed while running his engine in violation of a speed ordinance that while his conduct was negligence per se, it did not preclude recovery for Ms death, unless that negligence contributed to the injury. Lake Shore & M. S. R. Co. v. Parker, 131 Ill. 557, and with a similar question before it, the Supreme Court said in Star Brewery Co. v. Hauck, 222 Ill. 348: “Even,- if deceased had been engaged in the violation of an ordinance, to bar a recovery on that ground it must appear that such violation of the ordinance ^was the proximate and efficient cause of the injury. It will be seen from these authorities that the court did not err in either refusing the instruction as offered or modifying it as given. It is not claimed that the damages awarded by the jury are excessive. There was much conflict in the evidence upon several questions material to the issues, but in our opimon the verdict is supported by the evidence.

We find no material error of the trial court in his instructions to the jury, therefore the judgment will be affirmed.

Affirmed.


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    Marie Crandall, Appellee, v. Continental Casualty Company, Appellant.
    Gen. No. 5,749.
    1. Insurance—construction of contract. Wliere there is no ambiguity or uncertainty in a contract of insurance courts are bound to construe it according to its plain terms.
    2. Insurance—injury fatal because of -pre-existing disease. Where the insured dies from the contributing causes of choking on food and a pre-existing abscess in the oesophagus, no recovery can be had under a policy providing for payment if the insured “should receive bodily injury which was effected directly and independently of all other causes through external violent and purely accidental means resulting in death of insured necessarily and solely from such injury.”
    3. Insurance—when immaterial whether pre-existing disease which contributed in causing death was alone fatal. Where choking on food and a pre-existing abscess in the oesophagus are the contributing causes of the death of the insured it is immaterial whether the abscess alone was necessarily fatal when recovery is sought on a policy providing for payment in case of death from bodily injury effected directly and independently of all other causes through external, violent and purely accidental means.
    Appeal from the County Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed with finding of facts.
    Opinion filed March 12, 1913.
    Woleenbarger & May and M. P. Cornelius, for appellant; Mantón Maverick, of counsel.
    Egbert N. McCormick, for appellee.
   Mr. Justice Carnes

delivered the opinion of the court.

This is a suit in assumpsit upon a health and accident insurance policy issued by appellant to the husband of appellee, May 11, 1905. The insured died September 8, 1911, and appellee is his beneficiary. The declaration sets out the policy in full, but the question here arises on the promise to pay the sum of $400 if the insured “should receive bodily injury which was effected directly and independently of all other causes through external, violent and purely accidental means resulting in death of insured necessarily and solely from such injury” within ninety days thereafter. It is averred that on September 6, 1911, the insured, “while in the act of eating food, accidentally choked thereon, and there and thereby received personal bodily injury which was effected directly and independently of all other causes through external, violent and purely accidental means as aforesaid, and from which personal bodily injury, within ninety days after receiving the same, the death of the insured resulted necessarily and solely from such injury.” The plea of general issue and a special plea were filed, the special plea setting up a release. In the view we take of the case, it will be unnecessary to consider the issue raised on the special plea. The verdict and judgment was for plaintiff.

Appellant says there is no dispute about the facts. Appellee says certain of the important facts are not in dispute and does not point out any material ones that are in dispute. The evidence disclosed without contradiction that Alonzo L. Crandall, the insured, was a man about fifty years of age, apparently in the average state of health of a man of his years, employed in the freight department of a local railroad and had been steadily employed at manual and clerical work for a number of years before his death, except for about a month in October, 1910, when he was suffering from an accident and injury for which he received a payment from appellant under this same policy; that he apparently recovered from that injury and up to the time of the accident in question here had no knowledge that any disease, or serious bodily infirmity existed in consequence of that injury; that at noon on September 6, 1911, he was eating some meat pie and a portion of it became lodged in the oesophagus about fourteen inches from the teeth, which brought on coughing, and straining in an effort to dislodge the obstruction, which was not accomplished, and he went to work as usual about twenty minutes later. He came home from work that evening, could not swallow anything, and got a tube from a neighbor and with it tried to dislodge the obstruction, but without success. The next morning he was still unable to swallow but went to work as usual. He was suffering all the time from the effect of the obstruction and about eleven o’clock went to Doctor Cooper, who after three attempts succeeded in pushing it into the stomach. The insured was then able to swallow water, but was in great pain afterwards, and the doctor gave him a hypodermic of morphine, and called on him at his home twice that day and once in the morning of the next day (September 8) but the patient grew worse from the time of the operation and died about two p. m. of that day. There was an autopsy which disclosed an abscess, which would hold from five to six ounces of pus, about as large as a good sized pear, underneath or behind the oesophagus and an opening in the oesophagus right opposite the abscess. The abscess had been ruptured in the mediastinum space and part of its contents discharged into the pleural cavity. The medical testimony establishes without question that the contributing causes of the death were the choking and the abscess; that the insured might not have choked at the time he did, and would not have died at the time he did but for the abscess. Doctor Cooper testified, “The rupture of the abscess caused his death. The presence of the abscess, I think, had some influence in causing the choking. In my opinion the abscess was one of the causes of the death of the insured. The abscess was one of the contributing causes of the death of Mr. Crandall. I do not think Mr. Crandall would have died at the time he did die, if it had not been for the abscess. The choking, and the treatment I administered to Mr. Crandall on September 7, would not have brought about the death of a man in a normal condition and free from disease. * * * It is possible * * * that nature would have taken care of that abscess and that Mr. Crandall would have recovered had it not been for his choking. The abscess, so far as I was able to judge, was of some considerable standing. The longer the abscess continued, the greater the possibility of nature absorbing it. It is my theory that this abscess was of long standing and had been discharged into the oesophagus. * * * The fact that it is of long standing would indicate that nature is taking care of it. * * * I think it possible * * * that it would have been discharged out through the oesophagus and have carried out of the system in a natural way, and entirely healed, had it not been for a sudden rupture of the abscess. * * # I think that Mr. Crandall would not have died at the time he did but for the choking. He might have lived and entirely recovered from that (the abscess) * * *. It had ruptured subsequent to the choking. It does not necessarily follow that an abscess of that sort will be taken care of by nature. It is very probable that Mr. Crandall might have died of that abscess eventually. * * * I think it is very possible that the abscess would have eventually caused his death. * * * It is very possible that Mr. Crandall might have lived indefinitely with that condition. The rupture of an abscess in that cavity would be a shock to the system. Mr. Crandall died from the shock of distributing this stuff in his system. Nature has provided no way or means of taking care of it from the pleural cavity.” There was no other medical testimony in the case. Therefore it is beyond dispute that the injury produced by the lodging of the meat in the oesophagus caused the death of the insured only because of the presence of the abscess.

The case presents the question whether an injury fatal only because of pre-existing disease or bodily infirmity can be said to be the sole cause of death; whether in such case death can be said to result necessarily and solely from such injury. But first, “Did the deceased receive personal bodily injury which was effected directly and independently of all other causes, through external, violent and purely accidental means?” And if he did, then “Did the death of insured result necessarily and solely from such injury?” If the second question is answered in the negative, it is not necessary to consider the first. Counsel for appellant, while not conceding the first question, have devoted their attention principally to the second. We will first consider the second question: Did the death of insured result necessarily and solely from such injury? It must be borne in mind that there is no evidence showing or tending to show that the injury caused the abscess; neither is there any evidence that the accident, independent of the abscess, caused the death. There is no doubt but that at the time of the accident the abscess was present and had existed for some time and that it did co-operate with the accidental injury to produce death. In reviewing the authorities it is helpful to divide accidental injuries associated with disease or bodily infirmities into three classes.

First. Accidents that cause the disease which causes death; as for instance, accidents that cause septicaemia or blood poisoning, followed by death.

Second. Accidents that cause the death of a person suffering from disease or bodily infirmity, which had no causal connection with the death; as for instance, death from gun shot wound of a person suffering from tuberculosis or heart disease.

Third. Accidents to persons suffering from preexisting disease or bodily infirmity, where death results from the accidental injury, and the pre-existing disease or infirmity, acting together; as for instance, an accidental injury to a person in the last stages of heart disease, that only because of such disease, results in sudden death.

In considering the various cases arising on accident insurance contracts containing similar provisions, we must bear in mind that the policy under consideration here is not one with a general undertaking to answer in case of death, or even death from accidental causes, with a clause excepting specific causes and thus limiting the general liability. Questions arise as to the order and burden of proof under policies so framed. There are also found cases where the undertaking is limited, as in this case, by its own terms as first stated, yet followed by exceptions of specified causes that, without such express exceptions, could not have fallen within the stipulated undertaking to pay. This form of policy seems to have been quite usual in the time of the earlier cases and less common in later years. We see no difference in construction of an insurance contract where the undertaking is as first stated clearly to answer only for death from some limited cause or causes, whether it is followed by express exception of some cause not there included, or not. If the stipulation be to pay in case of death from poison, it is immaterial whether or not it be followed by an express provision that the insurer will not be liable in case of death from some other specified cause. The plaintiff must aver and prove death from poison. Yet in discussing cases containing such useless exceptions, the courts have often naturally referred to them as express provisions that the insurer would not be liable in such event. The legal effect of the policy is the same whether the redundant provision is present or. not.

Counsel for the respective parties direct our attention to Illinois cases holding that policies of insurance being signed by the insurer only, and the language being that of the insurer, the provisions of the policy are to be construed most favorably for the insured in case of doubt or uncertainty in its terms so as not to defeat, without a plain necessity, his claim to the indemnity which in making the insurance it was his object to secure. But where there is no ambiguity or uncertainty in a contract of insurance, courts are in duty bound to construe the contract according to its plain terms and must not indulge in far-fetched constructions to fix a liability upon the company. The cases of Healey v. Mutual Accident Ass’n, 133 Ill. 556 and Crosse v. Knights & Ladies of Honor, 254 Ill. 80, are in point, but the rule has been many times announced in this state and is a general rule of construction often repeated in decisions of other states and the text books. It is not necessary to point out further authorities sustaining and illustrating it. It is a general and well recognized rule of construction of written contracts, applied to insurance policies.

Our Supreme Court in Central Accident Ins. Co. v. Rembe, 220 Ill. 151, had under consideration a case involving the queston of cause of death. The insurance contract provided “that upon the death of the insured caused by external violence and accidental means the company would pay,” etc., and as plead in the first count of the declaration was followed by this excepting clause, “This policy does not cover * * * death * * * resulting wholly or partially from any of the following causes: * * * voluntary or involuntary taking of poison or contact with poisoned substance.” The insured, who was a physician, while preparing medicine for a patient in removing the cork from a bottle, accidentally broke the neck of the bottle, a piece of glass cutting a small wound in his finger. Blood poisoning followed and he died within a few days from its effect. There was evidence tending to prove that the infection was introduced at the time the wound was inflicted and the question arose whether his death, should be held to have resulted wholly or partially from coming in contact with a poisoned substance. The court, in discussing the question, says, “The cause of the death, as we understand it, was the wound in the finger, by means of which blood poisoning intervened, ’ ’ and cites with approval Martin v. Manufacturers’ Accident Indemnity Co., 151 N. Y. 94, holding that inoculation of the wound at the very time of its infliction is a part of the injury, and the immediate cause of the death. Quotes from Western Commercial Travelers’ Ass’n v. Smith, (56 U. S. App. 393), 40 L. R. A. 653; “If the death was caused by a disease which was not the result of any bodily infirmity or disease in existence at the time of the accident, hut which was itself caused by the external, violent and accidental means which produced the bodily injury, the association was equally liable to pay the indemnity. In such case the disease is an effect of the accident; the incidental means produced and used by the original moving cause to bring about its fatal effect; a mere link in the chain of causation between the accident and the death.” Quotes from Delaney v. Modern Accident Club (121 Iowa 528), 63 L. R. A. 603; “Disease brought about as the result of a wound, even though not the necessary or probable result, yet if it is the natural result of the wound, and not of an independent cause, is properly attributed to the wound; and death resulting from the disease is a death resulting from the wound, even though the wound was not, in its nature, mortal or even dangerous.” The court concludes that the plaintiff was entitled to recover on the theory that the wound of the finger was the cause of death, but also says the plaintiff was entitled to a verdict under the other count of the declaration in which this question was not involved. This court in U. S. Health & Accident Ins. Co. v. Harvey, 129 Ill. App. 104, considered a similar question and said, “If the resulting disability is the effect of the accident, so as to be a mere link in the chain of causation between the accident and the disability, then the disability must be attributed to the accident alone, and is not excepted from the risk. The puncture by the wire or nail was within the terms of the policy, and blood poisoning resulting from, and being caused by the accident, was a disease caused by the accidental wound and is within the policy.” Again in Coulter v. Travelers’ Protective Ass’n, 144 Ill. App. 255, this court passed on an instruction, “That though the jury believe from the evidence that the death of Coulter was caused in part by bodily infirmity or disease; yet if you believe from the evidence that said Coulter received accidental injuries and that such bodily infirmity or disease was caused by or was a natural, direct, proximate and necessary result of such accidental injuries and that such accidental injuries were the direct cause of his death, then the fact that such bodily infirmities or disease contributed to cause the death of the deceased would not constitute a defense to this action,” and held the instruction good and in accordance with the rule announced in the Rembe and Harvey eases, supra. In none of these three Illinois cases was the question presented of pre-existing disease combined with the accidental injury. The court only held that in case of an injury causing the disease which caused death, the injury is to be considered the only cause of death; but in discussing that question and citing authorities, seem to have had in mind the difference between a disease that is caused by the injury and a pre-existing disease. In Moore v. Illinois Commercial Men’s Ass’n, 166 Ill. App. 38, the Appellate Court of the First District considered a clause in an insurance contract as follows: “Whenever any member * * * shall, through external, violent and accidental means, receive bodily injuries which shall * # * independently of all other causes result in the death of said member,” etc., and held on the authority of Illinois Commercial Men’s Ass’n v. Parks, 103 C. C. A. 286, 179 Fed. 794, that the burden of proof is on the beneficiary under the policy, not only to establish that the injury from which death ensued was accidental, but “that such accidental injury was the sole cause of death, independently of any pre-existing /disease or bodily infirmity, as contributory cause thereof.” The first three of these Illinois cases are authority for a rule that death occurring from disease caused by an injury is to be considered as caused only by the injury and the last case for a rule that if the disease causing or contributing to death is a pre-existing disease, the plaintiff cannot recover.

Counsel for appellee refers us to Railway Officials’ & Employers’ Acc. Ass’n v. Coady, 80 Ill. App. 563, as holding a different rule. In that case there was a conflict of evidence as to what caused death, and it is not clear that the reasoning of the court was not on the assumption that the accident caused the death independent of the bodily infirmity. The question of pre-existing disease was briefly considered without reviewing the authorities, and we do not think the court intended to say that a death caused by an accident, because only of a pre-existing disease co-operating with the accident, is to be held to be caused only by the accidental injury.

National Masonic Acc. Ass’n of Des Moines v. Shryock, 20 C. C. A. 3, 73 Fed. 774, was decided in 1896 and has been often cited in later cases. The clause referring to cause of death read, “which would independently of all other causes cause his death,” followed by the stipulation that the insurance does not cover death resulting wholly, or in part, directly or indirectly, from disease or bodily infirmity. The insured suffered an injury from an accident that would not have been sufficient to produce death if his heart had not been weakened by disease, but because his heart was weakened by disease, there was evidence tending to show that the accident caused his death. The court said, “If he sustained an accident, but at the time it occurred he was suffering from a pre-existing disease or bodily infirmity, and if the accident would not have caused his death if he had not been affected with the disease or infirmity, but he died because the accident aggravated the effects of the disease, or the disease aggravated-the effect of the accident, the express contract was that the Association should not be liable for the amount of this insurance. The death in such a case would not be the result of the accident alone, but it would be caused partly by the disease and partly by the accident, and the contract exempted the Association from liability therefor.” The court treats these propositions as settled law and cites many authorities in support of them.

Penn v. Standard Life & Accidental Ins. Co., 158 N. C. 29, was decided by the Supreme Court of North Carolina in December, 1911, and again considered on petition for rehearing in November, 1912. (76 S. E. Rep. 262.) It was an action on an accident policy which insured against “the irrecoverable and entire loss of one eye * # * effected directly and independently of all other causes, through external, accidental and violent means.” The theory of fact upon which the court discussed the law was that the insured had a cataract and while in that condition received an injury to his eye by falling from a car that, combining with the diseased condition, resulted in loss of sight. The trial court charged the jury that if they found “that the plaintiff fell from the car and was thereby injured and that this injury was soon thereafter followed by loss of sight,” and further found “that the condition of the plaintiff’s eye at that time was such that independent of the injury, he would ultimately have lost his sight, and that this injury, falling from the car, merely hastened the loss of his sight, in that event you will not find that the injury was caused directly and independently of all other causes through external, accidental, and violent means. The court, disregarding the clause of the instruction “that he would ultimately have lost his sight,” discussed the law and reviewed the authorities in cases where the death or injury was the combined result of accident and pre-existing disease, reaching the conclusion that under the terms of the policy there could be no recovery if the loss of sight so resulted. The court quotes with approval from Carr v. Pacific Mut. Life Ins. Co., 100 Mo. App. 602, that the question of “proximáte and immediate cause is not raised under the conditions of a policy which in terms excludes disease or bodily infirmity, and which could have no more force than the general provision, ‘independent of all other causes.’ ” Cites Commercial Travelers’ Mut. Acc. Ass’n of America v. Fulton, 24 C. C. A. 654, 79 Fed. 423, and says, “If the jury had found that the injury was caused by the sum of . two causes, that is, that the accident and the pre-existing cataract and diseased condition of the eye were together responsible for the subsequent blindness, the plaintiff could not have recovered, as the injury must have resulted from the accident, independent of all other causes.” Cites White v. Standard Life & Accident Ins. Co., 95 Minn. 77, and approves its holding that, “If an injury and an existing bodily disease or infirmity concur and cooperate to that end, no liability exists,” but says, “If, however, the injury be the cause of the infirmity or disease—if the disease results and springs from the injury—the company is liable, though both co-operate in causing death;” also in cases where the insured is afflicted at the time of the accident with some bodily disease, if the accidental injury be of such a nature as to cause death solely and independently of the disease, liability exists. Quotes from Ward v. Aetna Life Ins. Co., 85 Neb. 471, “Plaintiff was not entitled to recover if death was caused by the sum of these two causes.” Again, illustrating from New Amsterdam Casualty Co. v. Shields, 85 C. C. A. 122, 155 Fed. 54, where it was conceded that appendicitis caused the death of insured and the question was whether a fall, “acting independently of any other cause, produced this disease.” And it was held that if there was a susceptibility to have appendicitis, in case a proper exciting cause should arise and the fall prove to be such exciting cause, the case would be one for recovery. But if there was not merely a susceptibility, but the actual disease itself existed, liable to be rendered active and virulent by an injury, the active disease which resulted in death, would not be regarded as the result of the fall alone, but as the joint result of the fall and the latent disease.

The court in the Penn case, supra, from which we have been quoting formulates three rules based on the authorities very fully and carefully reviewed:

(1) “When an accident caused a diseased condition, which together with the accident resulted in the injury or death complained of, the accident alone is to be considered the cause of the injury or death.”
(2) “When at the time of the accident the insured was suffering from some disease, but the disease had no causal connection with the injury or death resulting from the accident, the accident is to be considered as the sole cause.”
(3) “When at the' time of the accident there was an existing disease, which, co-operating with the accident, resulted in the injury or death, the accident cannot be considered as the sole cause, or as the cause independent of all other causes.”

The petitioner for rehearing urged upon the court the case of Fetter v. Fidelity & Casualty Co., 174 Mo. 256, which case is by appellee here much relied upon. The court reviewed the case and noted that in the Fetter case, supra, there was a question of fact whether the disease (cancer of the kidney) that cooperated with the accidental injury to the kidney to produce death was or was not caused by the injury, which question might be regarded as answered in the affirmative by the verdict of the jury, and the plaintiff entitled to recover under Buie 1 as there stated, and the court’s discussion of proximate cause regarded as not necessary to the decision of the case, and that the court manifested, a distrust of its own reasoning in that part of its discussion by recurring to the fact that there was a fair question whether the accident caused the disease, and the jury might be sustained in finding that it did. In the Penn case, supra, the instruction reviewed stated the law applicable to a case where the contributing disease (cataract) would, without the accident, have caused the loss of the eye, and does not literally cover the question here, because in this ease under the evidence, the abscess alone might not have caused the death of insured. But we see no difference between death from the contributing causes or injury and a necessarily fatal abscess, and death caused by injury and an abscess not alone necessarily fatal. In our case neither the abscess nor the injury was necessarily fatal. The injury, in the absence of the abscess, would not have caused death. The abscess in the absence of the injury was perhaps fatal, perhaps not. The court in the Penn case, supra, on the petition for rehearing noted this point and said, “It should be understood that in case of an accident resulting in injury or death, if there was an existing disease having also a causal connection therewith, it is not necessary that the disease itself should have been one which would ultimately have proved fatal, or that it should be of itself sufficient to have caused the injury or death. "Under the rule that, where the injury or death has been caused by the sum of two causes, it is sufficient to prevent a recovery on the policy, if any ordinary disease, not itself necessarily fatal, should contribute with the accident to cause the death; that is, if without the presence of the disease, the accident itself would not have been sufficient to have caused the injury or the death. And so in this case it would have been sufficient to have shown a diseased condition of the eye, which, together with the alleged accident, resulted in blindness. It is not necessary in such a case to show that the disease of the eye was such that it would ultimately have resulted in blindness.”

Appellee relied much upon the case of Continental Casualty Co. v. Lloyd, 165 Ind. 52. The case was decided in 1905 and presents questions very similar to those under consideration here. There was a rupture of an artery caused by the presence of a pre-existing tumor. It was urged that the death of insured was caused partly by accident and partly by diseased and weakened condition of the artery, and as insurer’s liability was limited to “Such injuries as shall solely and independently of all other causes, necessarily result in death,” that there could be no recovery. The court seems to have assumed that under that clause the injury was as to the efficient, dominant, proximate cause of death—that is that “sole cause of death” and “efficient, dominant, proximate cause of death” are phrases with the same meaning. Several authorities are cited by the court to sustain that position. On examination of them it will be found that in a part of the cases the words “proximate cause” were used in the policy, leaving no question as to the relative meaning of the two phrases. It was held in Carr v. Pacific Mut. Life Ins. Co., 100 Mo. App. 602, that there is no question of proximate and immediate cause arising in consideration of the phrase “only cause,” or its equivalent. The case of Commercial Travelers’ Mut. Acc. Ass’n of America v. Fulton, 24 C. C. A. 654, 79 Fed. 423, also holds that the question of proximate cause is not involved where the question of only cause is under consideration and reviews some of the authorities cited in the Lloyd case, supra, sustaining its postion, and as we have seen, the Penn case, supra, concurred in that view. In the Lloyd case the conclusion was reached that the insurer was liable and the decision is not reconcilable with that of the Penn case and the other cases there cited and followed, but we believe the great weight of authority supports the conclusions reached in the Penn case, and while the direct question here involved has not been settled by our Supreme Court, that it has in its reasoning in the case of Central Accident Ins. Co. v. Rembe, supra, indicated an accord with the views expressed in the Penn case. The following authorities support this construction of the contract: Stanton v. Travelers’ Ins. Co. (1910) 83 Conn. 708; Thomas v. Fidelity & Casualty Co. of New York (1907) 106 Md. 299; Ward v. Aetna Life Ins. Co., 85 Neb. 471; New Amsterdam Casualty Co. v. Shields, 85 C. C. A. 122, 155 Fed. 54; Cary v. Preferred Accident Ins. Co. of New York, 127 Wis. 67, 5 L. R. A. (N. S.) 926, 115 Am. St. Rep. 997, 7 Ann. Cas. 484; National Masonic Acc. Ass’n of Des Moines v. Shryock, 20 C. C. A. 3, 73 Fed. 774; Commercial Travelers’ Mut. Acc. Ass’n of America v. Fulton, 24 C. C. A. 654, 79 Fed. 423; White v. Standard Life & Acc. Ins. Co., 95 Minn. 77, 5 Ann. Cas. 83; Binder v. National Masonic Acc. Ass’n, 127 Iowa 25, 35 and 1 Cyc. 263, and note 64. In the late case of Illinois Commercial Men’s Ass’n v. Parks, 103 C. C. A. 286, 179 Fed. 794, many of the authorities are reviewed.

It is suggested that such construction may sometimes work hardship, but it may well be answered in the language of the court in Carr v. Pacific Mut. Life Ins. Co., supra, “What are the courts to do in. such cases? We can only construe the contract as we find it. The parties had a right to so contract, as there is no law prohibiting such, and it does not appear to be ultra vires.” And it may be added that rules 1 and 2 stated in the Penn case, supra, fairly protect the insured. It is necessary that the rights of both the insured and insurer be fixed and based on some recognized rules of law. Cases can be imagined when rule 3 would seem harsh and offensive, but it is quite as easy to imagine cases where, to permit a recovery because of a slight accident and great bodily infirmity combining to cause death, would be absurd. There are few general rules that do not provoke protest in extreme cases.

Our conclusion is that the plaintiff failed to prove that the death of the insured was caused, as provided in the policy, and must therefore fail in her suit. It is, therefore, unnecessary to consider or decide other questions of errors presented.

The judgment of the court below is reversed and as the whole case is now before us and evidently cannot be changed by another trial, we therefore reverse without remanding.

Reversed with finding of facts.

Finding of facts. We find that the death of Alonzo L. Crandall was not caused by receiving personal bodily injury which directly and independent of all other causes, through external, violent and purely accidental means resulted in his death, necessarily and solely from such injury.