text:
    North Chicago Rolling Mills Co. v. Charles Benson, Adm’r, etc.
    Infant employe.—Where an infant of sixteen years was employed as a common laborer at a rolling mill, and the next year, at his own solicitation, was promoted to he a switchman’s helper, and while coupling cars in that capacity was killed. Held, that the contract to work as switchman’s helper, whether express or implied, was not void hut only voidable; that while engaged in coupling the cars in question he was a fellow servant with defendants’ other servants who had the care and management of the train, notwithstanding his infancy. The judgment for the plaintiff is reversed, as contrary to the evidence and for erroneous instructions.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed January 6, 1886.
    This action was brought by appellee as administrator of J olm A. Benson, deceased, against the appellant corporation, to recover damages for causing the death of the intestate, as it is claimed by the negligence of appellants, its agents and servants. The declaration is in substance, that the defendant, August 29, 1883, was the owner and operator of a certain rolling mill, known, etc., situate at South Chicago, and possessed of and using, etc., a certain railroad connected with and extending over a portion of said rolling mill grounds, together with tracks, cars, locomotives, etc., and was then and there possessed of a certain locomotive engine with a certain freight train of ears thereto attached, and under the care and management of divers then servants of defendant, who were then and there driving the same on said railroad for the purpose of separating, weighing and coupling said cars, and the defendant being such owner, etc., theretofore, to wit, July 13,1882, at its request, the said John A. Benson, being a minor, had become and was employed by the defendant in the capacity of a common laborer about said mills, especially for the purpose of dumping stone, sweeping off the sidewalks up in the stock house, at daily wages, and for no other purpose whatsoever; and while said John A. Benson, with all due care and diligence was then and there dumping stone and sweeping off the sidewalk, the foreman, traffic manager and superintendent, then servants of the defendant, and then and there attending to the business affairs of said defendant and of said railroad, August 29, 1883, ordered the said John A. Benson to attend to coupling and connecting the said freight ears, then and there being separated, weighed and coupled as aforesaid upon the said tracks, contrary to the special engagement of the said John A. Benson, deceased, and to do which he was unversed and inexperienced, and which fact was well known to the defendant, and while so engaged in said coupling of said cars, having to go between them for the purpose, the defendant then and there by its servants so carelessly and negligently drove and managed the said locomotive and train, that by and through the careless and negligent conduct of the defendant, by its servants in that behalf, the said locomotive engine and freight train was then and there driven with great force and violence against the cars then being coupled; that deceased while using due care, etc.,being unable to make a coupling in the first instance, in making a second effort got his foot caught between the guard rail and main track and was run over and killed.
    Plea, general issue. Tried by jury, and verdict and judgment for plaintiff; damages at §1,200. Appeal by defendant.
    It appeared upon the trial without contradiction, that the deceased, John A. Benson, then being a little above sixteen years of age, was employed in July, 1882, as a common laborer, in dumping stone, sweeping sidewalks, etc., and that he was, in general capacity, above the average of lads or young men of his years, and that the next year he was ambitious and desirous of obtaining a better position; that his wages as such common laborer were §1.50 per day; that the wages paid for a switchman’s helper were §2.50 per day; that in July, 1883, at the special request of Benson and his friends who felt interested in him, he was employed by the yardmaster in the capacity of switchman’s helper, and was paid at the rate of §2.50; that in the absence of the switchman, it was his duty to couple cars that were being separated for the purpose of weighing in the yard; that deceased had worked as switchman twelve days in June, eight days in July, and fourteen days in August, 1883, and down to the 29th of the latter month, when he was killed, and that his wages in August were paid to his father. The evidence is clear and undisputed, that his employment had been changed from that of a common laborer to that of switchman at his own solicitation, and was entirely voluntary on his part. And there was no evidence tending to show any specific negligence on the part of those having the management of the freight train at the time of the unfortunate and deplorable accident occasioning John A. Benson’s death. The court at the instance of plaintiff, gave to the jury the following instructions:
    “ 2. If the jury believe, from the evidence, that the defendants delegated to then- yardmaster the care and management of their entire business, as a distinct department thereof, at their South Chicago Bolling Mills, and that the deceased went into the employment of the defendant as a common laborer, and was placed by them in a position of subordination, and subject to their orders and control, and was injured while performing hazardous duties which he had not undertaken to do, by order of the yardmaster, such as switching and coupling cars, which he did not contract to do, and the evidence so shows, and by means of which he was killed, and not in consequence of his own negligence, then they are instructed, as a matter of law, that the defendants are liable to the plaintiff for the pecuniary loss they may find he has sustained by the death of his son.”

      “ 3. If the jury believe, from the evidence, that the deceased at the time he' was employed by the defendants, was a lad of sixteen years of age, and was employed to do common work about the rolling mill grounds, and was sometimes ordered to supply the place of an absent switchman, and to switch and couple cars, and that he was inexperienced in handling switches and couplings, and was unfitted for that work by reason of his unskillfulness, inexperience and youth, and that this was known to the defendants ; that he was employed by the defendants at the time of his death, and for about a year previous thereto in the capacity of a common laborer only, and that he continued so up to the time of his death, and was ordered by the yardmaster, acting for and as the agent of the defendants, and within the scope of his authority, to switch and couple cars, which was out of the line of Ms duty as such common laborer, and the evidence so shows, and that while attempting to obey such order on the 29th day of August, 1883^ he caught his foot between the guard and main rail of the track and was run over and killed, and without fault or negligence on his part, and by the negligence of the yardmaster, the case of the plaintiff is established and he is entitled to recover. But in determining this matter, the court instructs you to take into consideration all of the evidence in the case.”
    Messrs. Willard & Driggs, for appellant;
    cited Gartland v. T., W. & W. Ry. Co., 67 Ill. 498.
    Mr. Gideon L. Barbee, for appellee.
   McAllister, J.

The fact was established by undisputed testimony, that • the deceased at the time of his injury, and for some time prior thereto, had been employed by the defendant at his own solicitation, in the capacity of a switch-man, in the defendant’s yard, whose duties, under that engagement, he was performing at the time of the accident. That fact was utterly subversive of the only cause of action set out in the declaration, and plaintiff’s second and third instructions to the jury should not have been given. The deceased was seventeen years of age in the May next before his death. His contract with the defendant to work for defendant in the cajiaeity of a switchman, whether express or implied, was not void, but only voidable. While engaged in coupling the freight cars he was clearly a fellow servant with the other servants of defendant, who had the care and management of that train, notwithstanding his infancy; Gartland v. Toledo, etc., Ry. Co., 67 Ill. 498; King v. The Boston, etc., R. R., 9 Cush. 112.

There is no averment in the declaration that the duties of switchman at that place were specially hazardous, or that the act of coupling cars, under the circumstances, was necessarily and ordinarily dangerous, or that the yardmaster or superintendent failed to notify deceased and inform him of the dangers to which he would be subject, and that deceased from his youth and inexperience was unacquainted with them. Coombs v. N. Bedford Cordage Co., 102 Mass. 575-595.

We are of opinion that the verdict was unsupported by the evidence; that said instructions to the jury were erroneous and that the judgment should be reversed and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: McAllister, J.

license: Public Domain

text:
    Julius Bastress et al. v. Charles F. Chickering.
    1. Bailment and sale.—When the identical thing delivered is to be' restored in the same or an altered form the contract is one of bailment, and the title to the property is not changed; but when there is no obligation to restore the specific article, and the receiver is at liberty to return another thing of equal value or the money value, he becomes a debtor to make a return, and the title to the property is changed; it is a sale.
    2. Ostensible ownbb of chattels—Rights of creditobs.—Where one party, by means of contract but without notice to the world, suffers the real ownership in chattels to be in himself and the ostensible ownership to be in another, the law will postpone the rights of the former to those of the execution or attachment creditors of the latter, because, to injure third persons by giving a false credit to such ostensible owners, is the natural and probable result of the transaction.
    3. Contract.—The court is of opinion that the contract in this case was not one of bailment or of principal and factor, and that although the form of agreement was that of consignment for sale, its real purpose was to cover up a sale and preserve a lien in appellee.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed January 6, 1886.
    This was replevin in the cepit and detinet, brought February 7, 1883, by appellees, Chickering & Sons, against Pelton, Pomeroy & Cross, and also against appellant Bastress, an execution creditor of the latter, and Hanchett, the sheriff, for seventeen Chickering pianos. Pelton, Pomeroy & Cross, making no defense, were defaulted. Bastress, the execution creditor, and Hanchett, the sheriff, pleaded the general issue: Property in Pelton, Pomeroy & Cross, and Hanchett, a special plea of justification as sheriff, setting up a regular writ of fieri facias issued February 7,1883, out of the Superior Court of Cook county, directed to him as such sheriff, upon a judgment of said court, of that date, in favor of said Bastress and against said Pelton, Pomeroy & Cross, for $10,252 damages and $7.50 costs; that in virtue thereof he, as said sheriff, then and there seized said goods and chattels, averring that they were the property of said defendants in said judgment and execution, concluding with a verification. To which plaintiffs replied, traversing only the averment as to the goods being the property of Pelton, Pomeroy & Cross. Issue being joined, there was a trial resulting in a verdict, finding all the issues for the plaintiffs. The court, overruling appellant’s motion for a new trial, gave judgment on the verdict. Hence this appeal.
    It appears that Chickering & Sons, plaintiffs below, had, for a long time prior to the transaction in question, been manufacturers, in the city of Hew York, of pianos known by their name; that for some two years prior to October 14,1882, Pelton, Pomeroy & Cross had been carrying on a general music store in Chicago in their own names as owners, and had been accustomed to buy for said business musical instruments, etc., from other parties as well as from plaintiffs; that said house in Chicago had been of long standing before Cross became a partner; did a large business and had a good reputation financially and otherwise; but that, in fact, the firm had become financially embarrassed prior to October 14, 1882; had borrowed large sums of money of one Tainter, for which he held the firm’s judgment note for $41,000; that the execution creditor, Bastress, was ignorant of that fact, and from time to time, after as well as before that date, lent to said firm sums of money, so that February 6, 1883, the amount borrowed of him amounted to $10,252. The evidence tends to show that Cross put no capital into the firm, and that for some reason he was zealously interested in behalf of Chicltering & Sons; that he, without the concurrence of either Pelton or Pomeroy, but co-operating with the Chickerings, prepared for execution the following agreement, which was in fact executed October 14, 1882, but antedated as of August 31,1882, Cross signing it for his firm. It was signed in duplicate and is as follows:
    “This agreement entered into this 31st day of August, 1882, between the co-partnership of dickering & Sons, of New York City, parties of the first part, and the co-partnership of Pelton, Pomeroy & Cross, of the City of Chicago, parties of the second part, witnesseth :
    “ The parties of the first part, at the request of the parties of the second part, agree to forward and deliver on consignment to the parties of the second part, all pianos of the manufacture of the parties of the first part that the last named par. tics may determine that the parties of the second part may need in their business in Chicago, at rates and prices to bo agreed upon and specified in the invoices of pianos, forwarded as aforesaid; said pianos to remain the exclusive property of the parties of the first paid, and to be sold for them and on their account by the parties of the second part.
    “ And the parties of the second part agree to pay all freight charges and costs of shipment of pianos consigned to them, and also keep them fully insured for the parties of the first part, and pay all insurance premiums thereon ; and to accept and receive said pianos only on consignment, as aforesaid, and sell and dispose of them only for and on account of the parties of the first part.

      “ And it is agreed, that the parties of the second part, as compensation, and in full for all charges, commissions, expenses, compensations, and claims of every nature against the parties of the first part, by reason of such consignment shall have all moneys received by the parties of the second part for the par • ties of the first part for the sale of such pianos, over and above the prices at which- such pianos shall have been consigned; and all moneys so received by the parties of the second part, shall be regularly remitted to the parties of the first part, less the sums the parties of the second part are entitled to retain under this agreement; and the moneys so remitted shall be credited and allowed in payment and discharge for the particular piano or pianos the same was received by the parties of the second part in payment for.
    “All advances that may be made by said consignees to said consignors by negotiable paper shall be credited on and for the particular piano or pianos they were made upon, but only when such negotiable paper shall have been paid and not before, and such advances, until paid in full, shall transfer no title to said consignees.
    “All pianos consigned as aforesaid shall be subject to the order of the parties of the first part, and their right to transfer, remove, sell or re-possess themselves of the same at any time, and without notice.
    “ The parties of the first part shall have the right to fix at any time, or in any case, the amount of advance to be made by the parties of the second part by negotiable paper, on consignments, and to fix the time on such negotiable paper, and may end this agreement at any time.”
    It appears from the evidence that, although Pelton, Pomeroy & Cross were from time to time borrowing money from Bastress after said agreement was made, yet he was kept ignorant of its existence. It also appears that for two years prior to that agreement, the plaintiffs had been selling and delivering pianos to Pelton & Co. on credit, the usage being for the latter firm to give the former notes covering the aggregate prices of those delivered during the month, at the end thereof; and that among those so sold and delivered were two which were in the store of Pelton & Co. at the time of the agreement and were among those replevied. There was nothing to indicate any change in the manner or character of the business of Pelton & Co. after the said agreement, which plaintiffs and Cross kept secret, except that the word “consigned” was written across each invoice of pianos shipped. All of said invoices, under which those in question were delivered, except as to number and prices, were as follows:
    “ The following conditions are agreed to as a statement of the relative positions and rights of Ohickering & Sons and their agents. The ‘agents’ of this firm are its customers, who are engaged in selling its pianos in the territory allotted to them. Such customers are not ‘agents’ in any sense known to the law, having no authority to bind said Chickering & Sons, or to incur liability on their account. The Messrs. Ohickering & Sons will take care of their own warranties of pianos, whenever requested, by making repairs, or authorizing them to be made, if justly chargeable. ‘Agents’ are not at liberty to make or procure repairs at the expense of Ohickering & Sons without permission. The agency may be terminated at any time, by either party, unless a written contract exists.”
    “It is agreed that the pianos specified in this bill are bought and sold upon the conditions herein set forth.” “Pelton, Pomeroy & Cross,
    “ To Ohickering & Sons, Dr.” Then followed the pianos, with style and number and price, in the usual form of a bill of goods sold, but across was written the word “ consigned.”
    The evidence tended to show that, at the end of each month, Pelton, Pomeroy & Cross made and sent their promissory notes to Ohickering & Sons, for all the pianos received by the former of the latter during the month, and accompanied by said form of invoice, the same as had been done prior to said agreement, and that they had paid, in cash, §1,000.

      The evidence tended to show that Pelton, Pomeroy & Cross were in failing circumstances in January, 1883 ; that an agent of Chickering & Sons then came to Chicago, and Cross went through the form of turning over to said agent the pianos in question, but the latter left them in the possession of Pelton, Pomeroy & Cross, the same as they had previously been; that on the morning of Feb. 7, 1883, the same form was repeated, but there was no visible change of possession, and they were then and there taken upon the execution aforesaid, in favor of Bastress; that said agreement, which was in fact made Oct. 14, 1882, was dated as of August 31, 1882, so as to cover pianos which had been sold and delivered by Chickering & Sons to Pelton, Pomeroy & Cross, and were in the possession of the latter, as purchasers, at the time said agreement was made, and so remained thereafter. There was evidence tending to show, and sufficient to go to the jury, that said agreement was in fact made with the intent, on the part of the parties making it, to hinder, delay and defraud the creditors of said Pelton, Pomeroy & Cross, by conferring upon said firm the indicia of ownership of the pianos, and thereby give them a false credit, while Chickering & Sons should retain to themselves a secret lien thereon, whereby they could, in case of danger from the creditors, through said agreement and the friendliness of Cross, beep the other creditors at bay.
    At the instance of plaintiffs, the court gave to the jury the following instructions:
    3d. “if, from the evidence, the jury believe that in the month of January, 1883, the said plaintiffs, by their agent, P. J. Gildemister, came to Chicago for the purpose of having a settlement with the said defendants, Pelton, Pomeroy & Cross, and then made a demand upon said Pelton, Pomeroy & Cross for the pianos involved in this suit, and if, at thé said time, the said Pelton, Pomeroy & Cross acknowledged to the said P. J. Gildemister that the said pianos were not their property, but belonged to said plaintiffs, or would be held by them, subject to the order of said plaintiffs, and that said pianos were the property of the plaintiffs at said time, then the jury are instructed that they must find the issues for the plaintiffs.”

      4th. “If, from the evidence, the jury believe that on the 7th day of February, 1883, P. J. Gildemister, acting as the agent of the plaintiffs, called at the store of the defendants, Pelton, Pomeroy & Cross, in Chicago, and made a demand for the pianos involved in this suit, and said pianos were at that time the property of the plaintiffs in this case, and were then turned over by the said Pelton, Pomeroy & Cross to the said plaintiffs, and checked off by them at that time, and, if they further believe from the evidence, that at said time the said defendants, after turning over the said pianos to the said plaintiffs, stated that they held them for the plaintiffs, subject to removal, then the j ury will find the issues for the plaintiff's, unless they shall find that the execution issued in favor of the defendant Bastress against the said Pelton, Pomeroy & Cross was placed in the hands of the sheriff of Cook county before the said pianos were so turned over to the said plaintiffs by the said defendants, Pelton, Pomeroy & Cross, if the jury shall find that they were so turned over as above stated.”
    5tli. “If, from the evidence, the jury believe that the pianos involved in this suit were sent on consignment by the said plaintiffs to the said defendants, Pelton, Pomeroy & Cross, and were held by them on consignment and in no other manner, and were not paid for by the said defendants, Pelton, Pomeroy & Cross, and that the said pianos were the property of the said plaintiffs, and that the said plaintiffs had the right, at any time, to make a demand for the removal of the same, then it made no difference whether the same were in the possession of the said Pelton, Pomeroy & Cross or in the hands of the sheriff, under the execution issued in favor of the defendant Bastress, if said pianos were the property of the plaintiffs; and if the jury shall find, from the evidence, that the pianos were so held upon consignment, and had not been paid for, they will find the issues for the plaintiffs.”
    6th. “ The jury are instructed, that if the plaintiffs in this case shall show that the pianos involved in this suit were sent upon consignment by the plaintiffs to the defendants, the burden of proof is upon the defendants to show that the said pianos were paid for by the said defendants, or that the said consignment agreement was modified, changed or abrogated.”

      Mr. H. W. Magee, for appellants;
    that an unrecorded agreement between parties, whereby the title to personal property remains in one, while the possession and all the wiclicia of ownership with the right of sale is given to another, whereby others are induced to give credit, is void in the State of Illinois as against iojia fide creditors, and amounts to a sale as far as they are concerned, and the. property covered would be subject to levy by an execution creditor, cited Thornton v. Davenport, 1 Scam. 296; Kitchell v. Brattan, 1 Scam. 300; Morris v. Grover, 2 Scam. 528; Rhines v. Phelps, 3 Gilman, 464; Jennings v. Gage, 13 Ill. 614; Reed v. Eames, 19 Ill. 596 ; Thompson v. Yeck, 21 Ill. 74; Brundage v. Camp, 21 Ill. 330; Read v. Wilson, 22 Ill. 381; Ketchum v. Watson. 24 Ill. 591; Bay v. Cook, 31 Ill. 336; Brownell v. Dixon, 37 Ill. 197; McCormick v. Hadden, 37 Ill. 371; Bell v. Farrar, 41 Ill. 404; Butters v. Haughwout, 42 Ill. 29; Murch v. Wright, 46 Ill. 488; M. C. R. R. Co. v. Phillips, 60 Ill. 190; Western Union R. R. Co. v. Wagner, 65 Ill. 197; Young v. Bradley, 68 Ill. 553; Ticknor v. McClelland, 84 Ill. 474; Allen v. Carr, 85 Ill. 388; Lucas v. Campbell, 88 Ill. 449; Sibley v. Tie, 88 Ill. 286; Latham v. Sumner, 89 Ill. 233; Van Duzor v. Allen, 90 Ill. 499; Rozier v. Williams, 92 Ill. 189; Martin v. Wirts, 11 Bradwell, 572.
    Messrs. Lyman & Jackson, for appellees;
    as to goods sent upon consignment, cited Gray v. Agnew, 95 Ill. 315; Fairbanks v. Malloy, 16 Bradwell, 281; Warner v. Martin, 11 Howard, 209; Ins. Co. v. Kiger, 103 U. S. Supreme Court Reports, 352; Alexander v. Tomlinson, 40 Ark. 216; Chicago Taylor P. P. Co. v. Lowell, 60 Cal. 454; Ballard v. Bergot, 40 N. Y. Reports, 314; Coville v. Hill, 4 Denio, 323; McNeal v. Tenth National Bank, 46 N. Y. 325; Story on Agency, 113; McCreary v. Gaines, 55 Texas, 485; Thompson v. Borman, 49 Iowa, 392.
   McAllister, J.

Whether or not there was actual fraud on the part of the Chickerings, plaintiffs below, and Cross, in entering into the agreement in cpiestion, was a question of fact for the jury, and which they have negatived by their verdict.

But the question as to what was the real object or purpose of the parties to that agreement, whether it was designed to cover a sale of the pianos from the Chickerings to Pelton, Pomeroy & Cross, and under the label or device of a consignment for sale, to preserve in the vendors a lien upon the goods, or whether it constituted a contract of bailment, were questions to be determined by the court, upon a construction of the instrument, fairly considering all its provisions, with the view of finding therefrom what was the real intention of the parties. Those, undoubtedly, are pure questions of law. Murch v. Wright, 46 Ill. 487; Hervey v. Rhode Island L. Works, 93 U. S. 664; Heryford v. Davis, 102 U. S. 235; Fish v. Benedict, 74 N. Y. 613.

As pertinent to those questions, we may briefly state that the contract provides: 1. That the prices at which Pelton, Pomeroy & Cross were to take the pianos of the Chickerings, were to be agreed upon and expressed in the invoices. 2. Pelton & Co. were to pay out of their own pockets all freight charges and costs of shipment, to keep them insured for the benefit of the Chickerings, the former paying the premiums. 3. Pelton & Co. were at liberty to sell the pianos at such prices as they chose to fix upon them, and to have all they could get over and above the invoice prices in full for all charges, commissions, expenses, etc. When they sold one or more they were to remit the invoice price to the Chickerings, and that should be in payment and discharge for the pianos so sold. 4. Advances might be made by Pelton & Co. by negotiable paper, and when such paper was paid, it should transfer the title to the particular pianos for which such paper was given. 5. All pianos delivered by the Chickerings to Pelton & Co. were subject to the order of the former and their right to transfer, remove, sell or re-possess themselves of the same, at any time, without notice.

The last clause we regard as in the nature of the insecurity clause usually inserted in chattel mortgages. Is this a contract of bailment'! It is well settled in this State, that when the identical thing delivered is to be restored in the same or an altered form, the contract is one of bailment, and the title to the property is not changed; but when there is no obligation to restore the specific article, and the receiver is at liberty to return another thing of equal value, or the money value, he becomes a debtor to make a return, and the title to the property is changed ; it is a sale. Lonergan v. Stewart, 55 Ill. 49, and authorities there cited ; Richardson v. Olmstead, 74 Ill. 213. Sir William Jones, in his work on Bailments, 2d Ed., 102, says: “It may also be proper to mention the distinction between an obligation to restore the specific things, and a power or necessity of returning others equal in value. In the first case it is regular bailment; in the second, it becomes a debt.”

It is indisputable, that under the contract in question, Pelton & Co. were vested with the power and right of discharging themselves from any further obligations as respected all the pianos mentioned in any one invoice, by paying to the Chiclcerings the negotiable promissory note given therefor, but which, for the purpose of disguising the real nature of the contract, is therein called an “advance.” In our opinion, it was not a contract of bailment, and the provisions authorizing Pelton & Co. to determine solely for themselves at what prices they would sell the pianos from their store, is almost conclusive that in reality they were not acting as the agents or factors of the Chiclíerings; but that, with the further provision that they were to bear as their proper burden all the expenses of shipments, etc., the same precisely as purchasers, would leave no doubt that the contract was not one of bailment, or of principal and factor.

The form of the agreement was that of consignment for sale, but its real purpose was to cover up a sale and preserve a lien in the Chiclcerings, for the price of the pianos. The invoices used are in perfect harmony with this view. They contained conditions which were to be considered as agreed to, and one of them was: “ The agents of this firm (Chickering & Sons) are its customers, who are engaged in selling its pianos in the territory allotted to them. Such customers are not agents in any sense known to the law,” etc. . Then follows: “It is agreed that the pianos specified in this bill are bought and sold upon the conditions herein set forth.” It is true that the word “ consigned ” was written across the bill, but there is no magic in that word which can take from the transaction its real character.

In Thompson v. Pratt, 94 Penn. St. 275, the court says : “ Whatever the form of the agreement, if its purpose was to cover up a sale and preserve a lien in the vendors for the price of the goods, it was void as respects creditors, whether the credit was given before or after the delivery of the goods. A consignment for such objects is no better than any other device.” The same view was taken in Murch v. Wright, supra, where the device was a pretended lease. So also in Hervey v. Rhode Island Locomotive Works, supra. The cases cited are authority for the doctrine that where one party, by means of contract but without notice to the world, suffers the real ownership in chattels to be in himself, and the ostensible ownership to be in another, the law will postpone the rights of the former to those of the execution or attachment creditors of the latter, because, to injure third persons by giving a false credit to such ostensible owners, is the natural and probable result of the transaction. Rose v. Story, 1 Barr, 190; Martin v. Mathiot, 14 Serg. & R. 214; Stadfeld v. Huntsman, 92 Penn. St. 53; Brunswick v. Hoover, 10 Weekly Notes of Cases, 219.

We are of opinion that the agreement in question was void as respects Bastress, the execution creditor, and the sheriff, for the reasons just stated.

It follows from the views expressed that the third, fourth, fifth and sixth instructions to the jury, given for plaintiffs below, were erroneous. In each, the third, fourth and fifth, the construction and effect of the written contract in question were submitted to the jury, and by the sixth its validity is directly assumed. The third and fourth declare the effect of Cross turning over the pianos in question to plaintiffs’ agent in January, and again Feb. 7, 1883 ; but in neither is there any hypothesis as to any new agreement, independent of that in writing, or of any change of possession. Ketchum v. Watson, 24 Ill. 591.

The judgment below will be reversed and the cause remanded.

On Beheap.ing.—On rehearing March 31,1886, a rehearing having been granted in this case, we have reconsidered the various questions involved with all the care and patience practicable, but are unable to reach conclusions different from those arrived at upon the first hearing. The judgment will, therefore, be reversed for the reasons stated in the opinion heretofore filed, and the cause remanded.

Judgment reversed.


author: Wilson, J.

text:
    Benjamin Lindauer et al. v. Moses M. Gray et al.
    Action foe deceit.—Where evidence fairly tends to show a cause of action, it is error for the court to instruct the jury to find for the defendai... The court is of opinion that the evidence in this case fairly tended, to show cause for an action on the case for deceit, and it was error not to submit it to a jury.
    Appeal from the Superior Court of Cook county; the Hon. Rollin S. Williamson, Judge, presiding.
    Opinion filed January 6, 1886.
    Mr. B. M. Shaffner, for -appellants.
    Messrs. Millard & Smith and Mr. Wm. J. Hynes, for appellees.
   Wilson, J.

This was an action on the case brought by appellants against appellees for deceit. The declaration contains five counts, the first three charging the defendants with deceit in falsely recommending one Armstrong as fit to he trusted with goods on credit, knowing him to he insolvent and unworthy of credit, whereby the plaintiffs were injured; the last two counts charging the defendants with a conversion of plaintiffs’ goods. There was a jury trial, but at the conclusion of the evidence, the court, on motion of the defendants, instructed the jury to find for defendants, which they did. The plaintiffs excepted and appealed to this court.

The evidence tended to prove the following state of facts: The plaintiffs and defendants were wholesale merchants in Chicago, the former dealing in men’s furnishing goods, the latter in groceries. One George hi. Armstrong was a lumberman in northern Michigan, where he also kept a stock of goods for sale at retail. He was considerably in debt to appellees for goods, previously bought of them, and had given them a chattel mortgage on his entire stock, as security. Being in Chicago about the middle of December, 1882, he was advised by Kingman, one of appellees’ firm, to largely increase his stock. Hponhis objecting that he was heavily in debt and a stranger here without credit, Kingman told him he could fix it for him, so that he could stock up his store, and lie gave him the names of different houses to apply'to, among them appellants’. Armstrong expressed his fears that he could not sell so many goods, but Kingman urged him to buy, telling him to refer to their firm as to his responsibility, but cautioned him not to say anything about the mortgage. Armstrong, acting on Kingman’s advice, bought goods of several of the firms named by him. Among others he called upon appellants, whom he did not know, and referred them to appellees as to his standing and credit. Before selling him any goods they sent a letter of inquiry to appellees, as follows :

“Office of Lindauer Bros. & Co., 75 and 77 Wabash avenue,

Chicago, Dec. 12, 1882.

“ Gray, Burt & Kingman, City.

“Sirs: Please favor us with the information you have ' regarding the standing, credit, etc., of H. G. Armstrong, Iron Rivei-, Mich., and oblige,

“ Yours respectfully,

“Lindaube Bros. & Co.”

To which they received the following reply:

“We give Capt. liberal line, and agree to carry over until he could realize on contracts for cutting logs was finished, when money would be more plenty. He has quite valuable contract, good trade at store, and with usual good weather should realize handsome profit on winter’s work.

“ Respect.,

“ G., B. & K.

“ Consider honest and means to do as he agrees.”

The reference being satisfactory appellants sold Armstrong a bill of goods to the amount of $1,022 on four months’ credit.

On the 2d day of January following, and before all the goods had reached their destination, appellees authorized one Clark, by written power of attorney, to take possession of the goods covered by their mortgage whenever he should deem them insecure. Clark went to Michigan and took possession January 5th, removed the sign of Armstrong, substituting in its place that of “ Iron River Store, John A. Clark, Manager,” changed the bill and letter heads in like manner, and assumed control of the business. Subsequently, on March 7,1883, Armstrong, at the request of appellees, executed two other chattel mortgages to them to secure $1,660.03, one covering all the property contained in the Iron River store and the other all the goods and chattels at Armstrong’s three lumber camps in Marquette Co., Mich., not included in chattel mortgage of November 18, 1882, as also all goods and chattels that might thereafter be brought into said camps. The mortgage empowered the mortgagees to sell at public vendue, on giving six days’ notice, etc. The property was sold on the mortgage April 18th following, in the Iron River store, at ten o’clock at night, with the doors locked, Mr. Armstrong, Mr. King-man and Mr. Clark and a Mr. Mansfield being the only persons present. Mr. Armstrong acted as auctioneer at the request of Kingman, and Clark bid. in the stock for appellees, who had it then shipped to Menominee, Mich., and there disposed of the following August.

Without undertaking to say that the facts as above recited were established beyond controversy, we are of opinion that the evidence fairly tended to prove them and to support the allegations of the plaintiffs’ declaration, and was clearly sufficient to have required the court to submit the case to the jury. As the case is to be sent back for a new trial, w© shall refrain from analyzing the evidence, but we have to say, in general,, that viewed in the most favorable aspect for the defendants, their conduct was well calculated to invite unfavorable criticism, if not to establish the charge of fraudulent contrivance and deceit. Their reply to appellants’ letter of inquiry as to the standing and credit of Armstrong, when viewed in the light of the surrounding circumstances as disclosed by the evidence, is more significant in what it omits to say than in what it says. As merchants and business men, they must have known that had appellants been made aware of the fact that appellees then had a mortgage on Armstrong’s entire stock of goods, and that he was heavily in debt, they would not have sold him goods on credit without security. Had appellees purposely designed to mislead appellants, it would seem that their letter could hardly have been more adroitly formulated to produce that result. That it did mislead is demonstrated by the 'fact that appellants upon the faith of it, sold a bill of goods on credit to an entire stranger "who was wholly irresponsible, and was known to be so by appellees when writing the letter. While appellees were under no obligation to furnish appellants with the information asked for, they were bound, if they spoke at all, to speak the truth, especially in view of the fact that Armstrong was already indebted to them more than he could pay; and the suppression of the truth was as hurtful as the expression of a falsehood. Viele v. Goss, 49 Barb. 96; Pasley v. Freeman, Smith’s L. C. 166, and cases in notes.

Whether appellees designed by aiding Armstrong to obtain goods from appellants and others on credit and thereby swell his assets, out of which to collect their own demands against him, was a fair subject for discussion before the jury, and they had the right in passing upon the question of intent to take into consideration Kingman’s caution to Armstrong not to say anything about the mortgage, as well as the fact that no mention was made of it in the letter to appellants. Why give this caution except to conceal a fact which it was perceived would almost certainly prevent his obtaining credit? These, as well as other significant circumstances disclosed by the evidence, which it is unnecessary to detail, were matters appellants had the right to have submitted to the jury. They tended to show that appellees’ conduct was at variance with the usages of fan- dealing business men, and indicative of sinister contrivance and deception.

It is claimed by appellees that there was no sufficient proof that the letter of credit purporting to have been written by appellees was written by their authority, but we think the evidence on that subject was sufficient to have justified the jury in finding that it was so written. Appellants’ letter of inquiry was sent by their assistant book-keeper to appellees’ office, where he presented it to appellees and received the answer, the letter in question, which he took back to appellants; and neither one of appellees denied upon the trial that it was written by their firm.

But it is not necessary on this appeal to demonstrate that the evidence was sufficient to show a cause of action; it is enough that it fairly tended to do so, and that appellants had reasonable grounds for contending that they had made out their case. In actions of this nature, whether there is fraud or not, is a question of fact peculiarly within the province of the jury to decide.

The judgment of the court below is reversed and the cause remanded for a new trial.

Reversed and remanded.


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    William Giffert et al. v. Charles B. Wilson.
    1. Chattel mortgage—Attachment.—Where a chattel mortgage is executed, but not recorded, and the mortgagee takes possession under his mortgage, the property covered by the mortgage would not be subject to a writ of attachment.
    2. Delivery.—Where goods were locked up in a storeroom at. the time that a chattel mortgage upon them was made. Held, that the delivery by the mortgagor to the mortgagee of the key to the room and the latter putting a new lock upon the door, locking it and keeping the key in his own sole possession, were facts suEcient to justify the jury in finding that there was a change of possession of the goods from the mortgagor to the mortgagee.
    Appeal from the.Circuit Court of Cook county ; the Hon. Lorin C. Collins, Judge, presiding.
    Opinion filed January 6, 1886.
    Mr. Thomas Shirley, for appellant.
    Mr. James B. Muir, for appellee.
   McAllister, J.

This action was replevin by appellee Wilson against- appellant Giffert and Hanchett, as sheriff, for divers articles of household goods and furniture. Under proper pleadings, the question for determination at the trial was, whether or not the goods in question were subject to a writ of attachment regularly sued out by the defendant Giffert, March 26, 1884, from the superior court, against the estate of Rachel Wice, under which and on the same day, the goods in suit were taken by the defendant Hanchett as sheriff. The plaintiff in this present suit claimed title to the property through a chattel mortgage made by said Rachel Wice to him, March 18, 1884, covering the same goods in question, to secure the sum of eighteen hundred dollars, payable in thirty days from that date with interest. Such indebtedness being for so much money lent by him at that time to raid Rachel. The mortgage provided that Wilson, the mortgagee, might take possession of the goods, and did not provide that the mortgagor might retain the possession of the goods. It was duly executed and the acknowledgment of mortgagor taken March 20, 1884, by the proper j ustice of the peace, but it was not recorded. But it was shown that at the date of the mortgage^ March 18, 1884, the goods in question were stored in a basement in West Chicago ; that on that day, the husband of said Rachel, being her authorized agent, went with said mortgagee Wilson to said place, and delivered over to him the key of the room for the purpose of giving him (Wilson) possession of the goods ; that the latter unlocked the door, looked at the goods and then got a new padlock, and putting it on the door to the room, locked it, notified the landlord of the premises that he would pay the rent and went away, not returning until he was informed, March 26, 1884, that the sheriff had broken said lock, gone in and seized the goods on said attachment.

The issues were found by the jury in favor of the plaintiff, Wilson, and the property to be his, and judgment passed accordingly. ,

There was nothing to show that Giffert became the creditor of said Rachel Wice subsequently to said 18th day of March, 1884; but it is claimed that the chattel mortgage not 'having been recorded, and the debt not having matured, the property was subject to Giffert’s attachment against the estate of Rachel Wice ; that even if possession by the mortgagee in an unrecorded mortgage, may be equivalent to recording, what was done here did not amount to a change of possession.

We are of opinion that the goods being locked up in a storeroom at the time, the delivery by the mortgagor to the mortgagee of the key to that room, and the latter putting a new lock upon the door, locking it and keeping the key in his own sole possession, were sufficient facts to justify the jury in finding that there was a change of possession of the goods from the mortgagor to the mortgagee. Chappel v. Marvin, 2 Aiken, 79; Benford v. Schell, 55 Penn. St., 393.

The mortgagee having taken possession under his mortgage, before the attachment against the estate of the mortgagor was issued, the property covered by the mortgage was not subject to that writ. Whisler v. Roberts, 19 Ill. 274; Frank v. Miner, 50 Ill. 444; Chipron v. Feikert, 68 Ill. 284; Jones on Chat. Mort. § 452.

We perceive no error in the instructions to the jury and the judgment should be affirmed.

Affirmed.


author: Bailey, P. J.

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    Merchants and Mechanics Insurance Company v. William Schroeder.
    1. Warranty or representation.—In a fire insurance policy a stipulation should be held to be a representation rather than a warranty, when from the ambiguity of the language or otherwise there is room for doubt.
    2. Over-valuation—Matter of opinion.—Where the application for insurance was made a part o£ the policy and it was insisted that a false representation as to the value of the property avoided the policy. Held, that the court below properly found that defendant failed to prove an over-valuation. Estimates as to the value of property are ordinarily not statements of fact but mere matters of opinion upon which different persons may differ widely and the same person may differ at different times.
    Appeal from the Circuit Court of Cook county; the Hon. Lorin C. Collins, Judge, presiding.
    Opinion filed January 10, 1886.
    Messrs. McConnell & Surra, for appellant;
    as to warranty, cited Flanders on Insurance, 226; Woods on Insurance, 271; First Nat. Bk. v. Ins. Co. of N. A., 50 N. Y., 47; LeRoy v. Market Ins Co., 39 N. Y. 91; Draper v. Charter Oak Ins. Co., 2 Allen, 569; Bartholomew v. Merchants Ins. Co., 25 Ia. 507; Marshall v. Columbia Ins. Co., 27 N. H. 157.
    Mr. H. H. Anderson, for appellee;
    cited Behrens v. Germania Fire Ins. Co., 13 Ins. Law Journal, 653; Lynchburg Fire Ins. Co. v. West, 12 Ins. Law Journal, 52.
   Bailey, P. J.

This was assumpsit upon a policy of insurance against tire. By said policy, the defendant insured the plaintiff against loss or damage by tire, to the amount of $1,000, for the term of one year from February 1, 1878, upon the following property, viz.: $200 on his building occupied by him as a planing-mill, $200 on his engine, boiler and connections, $400 on fixed and movable machinery, etc., and $200 on his stock, consisting of lumber, sash, doors, blinds, etc. On the 17th day of December, 1878, the property insured was totally destroyed by fire, the entire amount of the plaintiff’s loss being, as appears by the stipulation of the parties, $5,900. No question is made as to the sufficiency of the plaintiff’s performance of the conditions of the policy relating to notice and preliminary proofs of loss. Suit was brought within the period limitedby the policy, and on the 10th day of July, 1885, a trial was had before the court without a jury, resulting in a judgmmt in favor of the plaintiff for $1,010.37 and costs. From this judgment the defendant has appealed to this court.

It is claimed by the defendant that the policy is void by reason of certain statements in relation to the value of the property insured, in the plaintiff’s application for insurance.

It was stipulated in the policy that a certain application made by the plaintiff to the Boyal Canadian Insurance Company should form a part of said policy and be a warranty on the part of the insured. A subsequent condition of the policy was as follows :« “ If an application, survey, plan or description of the property herein insured is referred to in this policy, such an application, survey, plan or description shall be considered a part of this contract and a warranty by the insured; and any false representation by the assured of the condition, situation or occupancy of the property, or any omission to make known every fact material to the risk, or an over-valuation, or any misrepresentation whatever, either in a written application or otherwise, * * * then and in every such case this policy shall be void.”

In said application there appeared the following questions and answers: What is the cash value of building or buildings above foundation?” “About §3,000.” “What is the cash value of machinery, shafting, belting and gearing? ” “ About §10,000.” “ What is the average value of stock?” “ About §4,000.” The only witness at the trial who was examined in relation to the value of the property was the plaintiff, and he testified as follows: Q. “ At the time of the destruction of the property, what was the value of the buildings?” A. “Eighteen hundred dollars.” Q. “ What was the value of the engine, boiler and connections? ” A.. “ About sixteen hundred dollars.” Q. “What was the value of the stock consisting chiefly of lumber, sash, doors and blinds, contained in said building?” A. “From sixteen hundred to eighteen hundred dollars.” Q. “ What was the loss ? ” A. “It was a total loss. The value of the entire property covered by the policy and destroyed by the fire was at least §8,000.” On cross-examination he testified that said property was as valuable at the date of the loss as at the time the policy was issued, or more so.

Taking the plaintiff’s testimony as a whole, it maybe doubted whether the valuation placed upon the property in the application is shown to have been excessive. The plaintiff, when called upon to testify at the trial, seems to have been disposed to' give a conservative or minimum estimate of its value. This appears from his statement that it was worth §8,000 at least, but he did not testify, nor was he asked, whether it was not in fact worth more than that.

But assuming that the value stated in the application was too large, does it follow that the policy thereby became void? True, the policy, by its express terms, assumes to incorporate the application into the contract and make it a warranty on the part of the insured, but the language employed leaves it at least doubtful whether, after all, it was the intention of the parties to treat the statements of the application as to the value of the property as a warranty or as a mere representation. After declaring that the application should be deemed a warranty, it provided that any false representation by the insured as to the condition, situation or occupancy of the property, or an over-valuation, or any misrepresentation whatever, either in a written application or otherwise, should avoid the policy. The terms “warranty” and “ representation” are both used, and we must presume that both are used in their proper legal sense. A warranty is a stipulation in writing inserted into the policy on the literal truth or fulfillment of which the entire contract depends; while a representation is a statement incidental to the contract, relative to some fact having reference thereto, and upon the faith of which the contract is entered into. Both words being used, the policy may very properly be so construed as to make those matters which are therein designated as representations to be intended only as such; and from the order and relation of the language employed, it would seem to have been the intention of the parties to treat an over-valuation as a mere misrepresentation rather than as a breach of warranty. The terms of the policy are, to say the least, ambiguous, and a stipulation should be held to be a representation rather than a warranty, when, from the ambiguity of the language, or otherwise, there is room for doubt. May on Insurance, Sec. 162.

In National Bank v. Insurance Co., 95 U. S. 673, where the policy contained almost the same identical language as in the present case, the court; after suggesting several constructions, upon which the ambiguous terms employed might be construed, so as to relieve the insured from the strict obligations of a warranty, conclude as follows : Without adopting either of these constructions, we rest the conclusion already indicated upon the broad ground that, when a policy of insurance contains contradictory provisions, or has been so framed as to leave room for construction, rendering it doubtful whether the parties intended the exact truth of the applicant’s statements to be a condition precedent to any binding contract, the court should lean against that construction which imposes upon the assured the obligations of a warranty.”

But there is another, and we think even a more satisfactory reason, why the statements in the application in relation to the value of the property to be insured should not be treated as warranties. Estimates as to the value of property are ordinarily not statements of fact, but mere matters of opinion, upon which different persons may differ very widely, and as to which the same person, even when making his estimate at different times and in the light of different facts, may honestly reach conclusions very wide apart. All the force which properly belongs to such estimates, whether written into the face of the policy or otherwise, must necessarily be, that it expresses the fair and honest opinion and judgment of the applicant as to the true value of the property.

In Redford v. Mutual Fire Ins. Co., 38 Upper Canada, Q. B. 538, the application was made a part of the policy, and it was insisted that a false representation by the insured in the application as to the. value of the property avoided the policy. The court, in disallowing this defense, said: It is not every answer to every question in an application for insurance which is to be deemed and taken as an assertion or representation of a fact. The question may be so put as to ask for a mere statement of opinion, and the question, looking at its subject matter, may be of that character that an opinion only shall be deemed to be given, and thus not held to be the assertion or representation of a fact, so as, in the event of innocent exaggeration, to avoid the policy, bio man can generally do more than state his opinion as to the value of, property. There is nothing about which there may be greater differences of opinion among men than the value of real estate. The owner of real estate generally sets a higher value upon it than another, and this simply because it is his own, and he flatters himself to be better off in the world than he really is, a mistake very common among men in all conditions of life. A man may be able to state with something like absolute accuracy the distance of his house from any other building, the material of which his house is built, the number of stoves therein contained, and other matters of description, the accuracy of which, before the making of the representations, may be absolutely tested. But when a man is called upon to speak of the value of that which he has no desire to sell, a value which fluctuates from year to year, if not from day to day, he can only speak in the language of approximation ; he can do no better than state his belief or opinion. * * * Unless the evidence shows the overvaluation to have been intentional and fraudulent, the over-valuation does not usually affect the policy, for the reason that the statement as to value is not so much the assertion of a fact as an expression of an opinion.”

Has the defendant in this case established an over-valuation within the meaning of the policy? As said by Mr. May in his treatise on the Law of Insurance, “ The over-valuation, in order to work a forfeiture of the right of recovery, must be a clear one ; so clear that it is obvious at a glance, and can not be accounted for upon the principle that every man is naturally prone to put a favorable estimate upon his own. * "x" For no over-valuation, but a gross and clear one, and such as is or must be presumed to be known to be such by the insured, and not known by the insurer, and therefore false and fraudulent, will be held to vitiate the policy.” May on Insurance, Sec. 373.

We think the court below was justified in holding that the defendant had failed to prove such over-valuation. The value stated in the application was not certain and definite, but was stated to be about the sums named. In his testimony at the trial, the plaintiff gave a smaller estimate it is true, but said that the value was not less than that sum, without saying that it might not be much larger. Between these two statements there was no necessary discrepancy, or at least, none which necessitated a finding that the estimate given in the application was false and fraudulent, or one that could not be accounted for upon the principle that honest judgments may differ widely as to the value of the same property.

The p>oint is made by counsel for the defendant that, under the p>roof as to other insurance, the pdaintiff should have been allowed to recover no more than nominal damages. The Policy provides that, in case of other insurance, the insured should recover no greater proportion of the loss than the sum insured by said poolicy should bear to the whole amount insured ; and it is claimed that as the evidence showed other insurance, to the amount of §7,000, withontshowing how such other insurance was distributed upon the several items of pn-operty mentioned in the policy in suit, no data is furnished from which the amount recoverab'e under the pucsent policy can be determined. The only evidence of other insurance is that given by the plaintiff in his testimony where, in answer to a question as to whether he had the property covered by the present policy insured in 1878, and if so, for how much and in what companies, he answered, “I had the property insured in 1878 for §8,000,” and then gave a catalogue of the several companies in which it was insured, including the defendant. Hone of the other policies were produced, and no further evidence was furnished in relation to them.

We have then the mere statement that the property covered by the present policy, that is, the entire property, was insured in other companies to the amount of $7,000. There is no intimation, however, that those other policies divided the property into several items and insured each item separately, but the fair inference from the evidence is, that in those policies the property was insured as a whole and in a single item. The burden was thus thrown upon the defendant, to show that the property was so classified in those policies as to relieve it in whole or in part from its liability as to any particular item, if such was the fact.

The amount recovered was the defendant’s proportionate share of the loss, with interest from the time the loss became due to the date of the trial. The judgment was warranted by the evidence.

We find no error in the record, and the judgment will therefore be affirmed.

Judgment affirmed.


text:
    Lake Shore & Michigan Southern Railway Co. v. William Kuhlman, Adm’r, etc.
    Practice—Verdict result op prejudice or passior.—Courts are reluctant to disturb the findings of juries upon mere questions of fact, but where the verdict is so manifestly contrary to the evidence as to show that it must have been the result of passion, prejudice, or undue sympathy, it is the duty of courts to reverse such judgment.

      Appeal from the Superior Court of Cook county ; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed January 20, 1886.

      Mr. Cyrus D. Roys and Mr. Pliny B. Smith, for appellant.
    Mr. Clarence F. Dore, for appellee.
   Wilson, J.

This was an action on the case brought by the administrator of Adolph Harbanm against appellant, to recover damages for the death of Harbanm, who was run over and killed by appellant’s cars while attempting to cross the company’s tracks at Polk street, in the city of Chicago. There was a jury trial resulting in a verdict against appellant for $1,425, for which sum appellee had judgment. Appellant’s motion for a new trial being overruled, it appealed to this court.

The facts are within very narrow limits, and as to those upon which the case turns there is no substantial dispute. At the point where the accident happened, Polk street is crossed by a system of railroad tracks, nine in number, nearly parallel to each other. On each side of the tracks are gates which are lowered across the streets when trains are passing, and in the night time red lights are hung on the gates. These gates extend entirely across the roadway, the ends projecting about a foot over the sidewalk. They are notice to foot passengers and the drivers of teams alike of the approach and passing of cars. On the evening of the accident Ilarbaum, with two companions, approached the crossing from the west, and as they reached the tracks, a Rock Island passenger train was going out on the westerly tracks while a Lake Shore and Michigan Southern train was switching on the easterly tracks, the gates being at the time lowered across the streets. After the Rock Island train had passed, Harbaum and his friends, without waiting for the gates to be raised, started to cross the tracks. As they were passing the flagman, he told them to look out, that trains were passing. There were also upon the crossing two switchmen with lighted lanterns, and a watchman warning people to keep back. As they neared the track next west of the east track, the switching train, hidden from view by cars standing on an intervening track, was backing in ; upon discovering which Harbaum attempted to run around in front of it and thus cross over, in doing which he was struck by the train and killed.

It seems to us that the simple statement of the facts is enough to show that the deceased lost his life through his own rashness and folly. It appeared that he and his two associates were entirely familiar with the crossing, having, as the latter expressed it, crossed there “thousands of times.” He knew that when the gates were lowered with red lights attached to them in the night time it was a signal of danger, and that cars were passing or about to pass, and he was bound to know that to attempt to cross at such a time was exceedingly hazardous, and full of peril. In addition to the warning from the lowered gates, he was expressly admonished by the flagman not to attempt to cross as cars were then passing. But he seems to have preferred to take the chances of getting safely across rather than insure safety by a few moments’ delay. Hnder such circumstances can it be doubted that gross negligence and want of care was imputable to him? We think not.

Hor is it perceived in what respect the railroad company is chargeable with negligence. It was conceded on the trial that the gates were constructed in all respects as required by the city ordnance. It is not claimed that they were not lowered at the time of the accident, nor that, the deceased was not aware of it. But it is contended that appellant was at fault in not having a light on the switching train to give warning of its approach. It is a sufficient answer to say that the company furnished a full equivalent for such light by lowering the gates with red lights attached and expressly notifiving the deceased that cars were then passing. The only object of having a light displayed is to give notice that a train is approaching. If a person has actual and timely notice in some other way of the approach of a train, and with such notice voluntarily rushes into danger whereby he is injured, he can not hold another responsible merely because he was not notified in a particular way. Moreover, it appears that the deceased saw the train before it struck him, for he attempted to run around it instead of waiting for it to pass by. Having thus voluntarily assumed the hazard he must accept the consequences.

There was some conflict in the evidence as to whether the bell was ringing at the time of the accident; but conceding that it was not, the ringing of a bell, like the display of a light, is only to give warning, and as has already been seen, deceased had full warning in other ways.

Ho questions of law arise in the case upon which it is necessary to pass. The case is one purely pi fact; and while courts are reluctant to disturb the findings of juries upon mere questions of fact, cases sometimes arise where the verdict is so manifestly contrary to the evidence as to show that it must have been the result of passion, prejudice, or undue sympathy. In such cases it is the duty of courts to interpose and apply the corrective hand. That the present is such a case we see no room for doubt.

The judgment will therefore be reversed and the cause remanded for a new trial.

Reversed and remanded.


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    Benjamin Poyer v. Village of Des Plaines.
    1. Municipal Corporations—Nuisances.—Authority to prevent and abate nuisances may be constitutionally conferred on a municipal corporation, but such power, conferred in general terms, can not be taken to authorize the extra judicial condemnation of that, as a nuisance, which in its nature, situation or use, is not such.
    2. Same—Ordinance as to public picnics, etc.—The first section of an ordinance of a village was as follows: “ All public picnics and open air dances within the limits of this village are hereby' declared to be nuisances.” By the second section it was declared that it constituted a nuisance for any person to use or rent to be used any ground for public picnic purposes or open air dances, or to allow the use of such property for any purpose by which disorderly persons are gathered in or about said village. Held, on appeal from a judgment of the criminal court imposing a fine on appellant for an alleged violation of such ordinance, that so much of the ordinance as declares all public picnics or open air dances, regardless of their character, to be nuisances, is invalid. Whether a gathering is of such a character as to bring it within the clause of the ordinance which declares the use of grounds for the assembling of disorderly persons, etc., to be a nuisance, is a question of fact for the jury.
    Appeal from the Circuit Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Opinion filed January 20, 1886.
    This is an appeal from a judgment of the Criminal Court of Cook county, imposing a fine of $50 upon appellant for an alleged violation of an ordinance of the village of Des Plaines, in relation to picnics and open air dances. The village of Des Plaines is organized under the general act in relation to cities and villages, and appellant was the owner of grounds lying within the corporate limits of the village, which he rentó or uses for picnics and open air dances.
    The ordinance is as follows :
    “ Ordinance declaring picnics and open air dances a nuisance, and prohibiting the same:
    Whereas, for several years past various parties, residents of or owning real estate within the village of Des Plaines, have kept and rented for so-called ‘ picnic’ purposes various tracts of timber lands within said village, and in consequence whereof the Chicago and Northwestern ¡Railway Company has been accustomed to run between the city of Chicago and various points within said village certain special railway trains, commonly called picnic trains, whereby large numbers of vicious and abandoned persons are at short intervals brought from said city to said picnic grounds, by which said persons various crimes and misdemeanors have been committed, and
    Whereas, by reason of said picnics and the persons gath, ered in and about said grounds in consequence thereof, the people of the said village of Des Plaines are constantly in danger of bodily injury and pecuniary loss through larcenies committed by such persons, and are greatly annoyed in the possession of their property by constantly recurring trespasses which the police of the village are entirely unable to prevent on account of the number of the trespassers thus gathered together on account of said picnics.
    Therefore, Be it ordained by the president and board of trustees of the village of Des Plai/nes,
    Section 1. That all public picnics and open air dances within the limits of said village are hereby declared to be nui. sanees.
    See. 2. That for any person or persons to rent, use or allow to be used any yard, ground, grove or other real estate within the corporate limits of the village of Des Plaines for public picnic purposes or for open air dances, or to permit or in any way allow the use of such property for any purpose by which disorderly persons are gathered in or about said village of Des Plaines, shall constitute and is hereby declared to be a nuisance. Any person creating or permitting any nuisance mentioned and declared in this ordinance to exist, having the right or power to abate the same, shall be subject to a fine of not less than fifty dollars and not exceeding one hundred dollars in every case; and each renting, using or allowing to be used of any such premises for the purposes aforesaid, or any of them, shall be deemed the creating of a nuisance, and the author thereof be subject to a like fine.”
    The case was tried by a jury, and the court at the request of the plaintiff gave the following instructions:
    The jury are instructed, that the ordinance of the village of Des Plaines, introduced in evidence in this case, is valid and binding in law, and that if. you believe ,from the evidence that the defendant did, on the 31st day of July, A. D. 1883, rent, use, or allow to be used, any yard, ground, grove or other real estate within the corporate limits of the village of Des Plaines for public picnic purposes, or did on said day allow the use of such property for any purpose by which disorderly persons were gathered in or about said village of Des Plaines, then you should find the defendant guilty and assess his fine at a sum not exceeding one hundred dollars nor less than fifty dollars.
    The jury are 'instructed, that picnics held in grounds notoriously used for picnic purposes, to which all are admitted without question, there being no barriers to prevent such admission and no discrimination exercised by the proprietors or managers as to such admission, where refreshments are for sale to all who wish to buy, by the owner of the premises for his own profit, are public picnics within the meaning of the ordinance offered in the evidence in this case.
    To the giving of which the defendant duly excepted.
    And the court refused the following instructions.asked by the defendant.
    1. The court instructs the jury that the ordinance offered in evidence is void in so far as it seeks to declare all public picnics and open air dances to be nuisances, regardless of the character of such picnics and open air dances.
    2. The court instructs the jury, that the mere declaration by the board of trustees of the village of Des Plaines, that all public picnics and open air dances within the limits of said village are nuisances, does not make them nuisances unless they are such in fact. It is for you to determine, therefore, from the evidence, whether or not the picnic alleged to have been held on the 31st day of July, 1883, was or was not a nuisance.
    To which refusal of the court to give said instructions the defendant duly excepted.
    Mr. John Gibbous, for appellant.
    Messrs. Stiles & Lewis and Mr. C. S. Cutting, for appellee.
   Wilson, J.

The plaintiff introduced evidence tending to-prove that on July 31, 1883, a picnic was held on defendant’s grounds, with his consent, and that a large number of disorderly persons were assembled in and about said grounds, conducting themselves in a riotous manner, drinking, gambling, firing guns, etc., to the great annoyance of the citizens of the village. On the other hand the defendant introduced evidence tending to prove that the grounds were never rented for pub-lie picnics ; that they were only rented for Sunday school and church societies, or societies of that nature; that on the day in question they were rented to a society known as the Columbkills Church Society, for the holding of their annual society picnic; and that there was no drinking or disorderly conduct except such as might have been caused by intoxicating drinks sold in saloons licensed by the village.

By the first section of the ordinance all public picnics and open air dances within the limits of the village are declared to be nuisances, and by section two it is declared to constitute a nuisance for any person to use, or rent to be used, any ground for public picnic purposes or open air dances, or to allow the use of such property for any purpose by which disorderly persons are gathered in or about said village.

By giving the first instruction for the plaintiff, and refusing the first and second instructions for the defendant, the court, in effect, declared all public picnics and open air dances, regardless of their character, to be nuisances, and that it was immaterial whether they were conducted in a quiet and orderly manner or otherwise ; it being sufficient to show that the defendant permitted a public picnic or open air dance to be held.

To this view we are unwilling to assent. It would be a startling proposition that under this general grant of power authorizing cities and villages to declare what shall be nuisances, they could prevent the people from assembling in a peaceable and orderly manner, on suitable occasions, to indulge in healthful recreations and innocent amusements. It is difficult to perceive why dancing in the open air is per se any more reprehensible or more of a nuisance than playing at leap frog or lawn tennis. The groves and green woods are nature’s own temples, to which the people have the right to repair with the consent of the owner, for rational sports and social intercourse, provided they do not disturb the public peace nor encroach upon private rights. The framers of the constitution inserted in that instrument a clause making inviolate the right of the people to assemble in a peaceable manner to consult for the common good, to make known their opinions to their representatives, and to apply for redress of their grievances. And it may well be supposed they would have added the right to assemble for open air amusements had any one imagined that the power to deny the exercise of such right would ever be asserted by a municipal corporation.

The question now presented is not whether municipal corporations may not declare riotous and disorderly gatherings to be nuisances, for in respect to such gatherings the ordinance is only declaratory of the common law. Thus in Rex v. Moore, 3 Barn. & Adol. 184, (23 Eng. Com. L., 188,) where the indictment charged the defendant with keeping certain grounds for the use -of persons to practice rifle-shooting, and permitted idle and disorderly persons armed with guns to meet there, etc., Lord Tenterden said: “If a person collects together a crowd of .people to the annoyance of his neighbors, that is a nuisance for which he is answerable. And this is an old principle.”

In the present case the ordinance declares all public picnics and open air dances nuisances, however quiet and orderly they may be. In Wood on Nuisances, § 27, it is said, “The question is not whether an act has been declared to be, but does it come within the idea of a nuisance ? ”

Judge Dillon in his work on Municipal Corporations (3d Ed.) § 374, in speaking of nuisances and of the power of municipal authorities to prevent and abate them, says, “ This authority may be constitutionally conferred on the incorporated place, and it authorizes its council to act against that which comes within the legal notion of a nuisance; but such power, conferred in general terms, can not be taken to authorize the extra judicial condemnation of that as a nuisance which in its nature, situation or use is not such,” citing numerous authorities.

Under the English Municipal Corporation Act, where the powers conferred are similar to those conferred by our statute, it is held that the power to suppress nuisances is confined to the suppression and prohibition of acts which, if done, must necessarily and inevitably cause a nuisance, and does, not empower the council to impose penalties for the doing of things which may or may not he a nuisance according to circumstances. Addison on Torts, 54, citing Everett v. Grapes, 3 T. R. (N. S.) Q. B. 669 ; Wanstead Local Board v. Hill, 13 C. B. (N. S.) 479 ; and see also Darst v. People, 51 Ill. 288; Welch v. Stowell, 2 Doug. (Mich.) 332 ; Yates v. City of Milwaukee, 10 Wall. 497 ; in which Mr. Justice Miller said, “ The mere declaration by the city council that a certain structure was an encroachment or obstruction, did not make it a nuisance unless it in fact had that character.”

It is unnecessary to cite other cases to the same effect.

In North Chicago City Ry. Co. v. Lake View, 105 Ill. 207, cited by appellant’s counsel, the town passed an ordinance declaring the use .of steam as a motive power m operating the company’s railway along one of the public streets of the town to be a nuisance. The Supreme Court held the ordinance valid, but say, “We do not at all question the proposition that under a general grant of power like the one in question, town authorities have no power to pass an ordinance declaring a thing a nuisance which is clearly not one. The adoption of such an ordinance would not be a legitimate exercise of the power granted, but on the contrary would be an abuse of it.” There the thing complained of as a nuisance could by no means be said to be clearly not one. On the contrary it is to say the least doubtful whether the running of steam cars along the public streets of a village is not per se a nuisance; and the court' adds, “ But in doubtful cases, where a thing may or may not be a nuisance, depending upon a variety of circumstances, requiring judgment and discretion on the part of ^town authorities in exercising their legislative functions, their action under such circumstances would be conclusive of the question.”

Our conclusion is that so much of the ordinance as declares all public picnics and open air dances, regardless of their character, to be a nuisance, is invalid; and that the court erred in refusing to so instruct the jury. Whether the gathering on July 31st was of such a character as to bring it within the second clause of the ordinance which declares the use of the grounds for the assembling of disorderly persons, etc., to be a nuisance, was a question of fact for the jury, to be decided according to the evidence, under proper instructions by the court.

For the errors indicated, the judgment below is reversed and the cause remanded for a new trial.

Reversed and remanded.


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    William T. Hixon et al. v. Charles H. Mullikin.
    Chattel mortgage.—A chattel mortgage given to secure a debt of $776, evidenced by two notes, dated December 6, 1883, one for $775, due January 15, 1884, and the other for $1, due one year after date, shows such a division'of the payments that the court deems it susceptible of but a single inference, and that is that the making of the $1 note was a mere device to keep the creditors of the mortgagor at arm’s length and prevent their seizing the goods for the period of a year or thereabouts, after the debt had matured, and was wholly incompatible with a bona fide arrangement to give the mortgagor the benefit of an extension of time on a portion of his indebtedness.
    Appeal from the Circuit Court of Cook county ; the Hon. Loeie C. Collies, Judge, presiding.
    Opinion filed January 27, 1886.
    Hr. Louis Huesoe, for appellants.
    Hr. Johe T. Royes and Hr. Fbaek A. Rayloe, for appellee.
   Wilson, J.

One Casterline being indebted to’appellee in the sum of $776, executed to him his judgment promissory note, dated December 6, 1883, for the sum of $775, payaVc January 15, 1884, also a note for $1, due one year after date, and to secure payment of both notes executed a chattel mortgage upon a stock of monuments which he was manufacturing and selling in the city of Chicago, as also upon “all other material in, or that may he npon the premises in future during the term of this instrument.”

The evidence tends to show that after the execution of the mortgage the mortgagor remained in possession of the mortgaged property and continued to manufacture and sell the monuments in the usual- course of business, openly and without concealment, and with the knowledge of appellee, down to July 17, 1884, a period of about six months after the maturity of the note for $775. On that day appellant Hixon recovered a judgment in the Superior Court of Cook county against Casterline for $237.92, upon which he sued out a writ of fi. fa. against the defendant and placed the same in the hands of appellant Hanchett, as sheriff of Cook county, to execute, who levied the same upon Casterline’s stock of goods, then in the latter’s possession. Appellee replevied the goods by bringing the present suit, claiming them under his mortgage. The jury found the property to be in the plaintiff and he had judgment accordingly; and the defendant appealed to this court.

The mortgage provided that it should be lawful for the mortgagor to retain possession of the goods at his own expense, and keep and use them until default should be made in the payment of the debt; and also that the mortgagee might at any time take possession of the same if he should feel insecure or fear a diminution, etc.

In the view we take of the case it is unnecessary to express any opinion as to the validity of the mortgage upon its face, or to inquire whether the business was conducted by Caster-line, the mortgagor, after the execution of the mortgage, by selling the goods at retail with the knowledge and consent of the mortgagee, in such manner as to render the mortgage invalid as against the rights of Casterline’s other creditors.

The statute in relation to chattel mortgages provides that a chattel mortgage duly executed, acknowledged and recorded, shall, if Iona fide, be good and valid from the time it is tiled for récord until the maturity of the debt or obligation, provided such time shall not exceed two years. In Cass v. Perkins, 23 111. 382, it is held that a mortgagee in order to preserve his lien must take possession promptly on default in the payment of his debt; and in Reed v. Eames, 19 Ill. 594, the court decided that permitting the goods to remain with the mortgagor after default is a fraud per se, not susceptible of explanation, the reason being that suffering the possession to remain in the mortgagor makes him the ostensible owner, and thereby gives him a false credit.

It was therefore necessary for appellee, if he desired to preserve his lien upon the goods as against the judgment creditors of Casterline, to have taken possession of the same promptly upon the maturity of his debt; and the question is, when did such maturity take place ? The debt was §776, for which he gave his judgment note for §775, payable January 15,1884, or about forty days after date, and a note for §1 due one year after date. Such a division it seems to us is susceptible of but a single inference, and that is, that the making of the one dollar note was a mere device to keep the creditors of the mortgagor at arm’s length and prevent their seizing the goods for the period of a year, or thereabouts, after appellee’s debt had matured. It was wholly incompatible with a iona fide arrangement to give the mortgagor the benefit of an extension of time on a portion of his indebtedness. We do not question the right of a flebtor, with the consent of his creditor, to divide up his indebtedness by making it payable in installments and securing it by a chattel mortgage which would be binding until the maturity of the last installment, not exceeding two years, if the division is made in such manner as to comport with a iona fide business transaction. But where, as in this case, a debt of §776 is divided into sums of §775, evidenced by a note payable in forty days, with a power of attorney to confess a judgment, and a note for §1 payable in a year, and this is made the basis of a chattel mortgage giving the possession of the goods to the mortgagor for that time, the inference is very plain that the design was to save the goods from seizure by other creditors, and the transaction was in fraud of their rights. It follows that as the goods were not reduced to possession by the mortgagee until six months after the maturity of his debt, they were subject to appellants’ execution and the jury should have found the property in appellants.

The judgment will be reversed and the cause remanded for a new trial.

Reversed and remanded.


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    Ellen E. Flynn, Adm'x, etc., v. Wabash, St. Louis & Pacific R. R. Co.
    1. Pkactice.—A motion to strike out the plaintiff’s evidence being in the nature of a demurrer to the evidence admits not only all the facts proved but also every conclusion which the jury might fairly and reasonably infer therefrom.
    2. Negligence.—In an action on the case brought against a railroad company to recover damages for the killing of an employe, a brakeman, where it was alleged that the company negligently permitted a pipe on the engine to be out of repair, in consequence of which water leaked on the track and froze, and that the brakeman while uncoupling cars, in the exercise of due care, slipped on such ice and was run over and killed by the cars, and plaintiff offered to prove that the company had been notified of such defect. Held that it was error for the court to instruct the jury that “ upon the facts in this case as proved by the evidence, the plaintiff is not entitled to recover and your verdict therefore will be for the defendant, mt guilty.”
    Appeal from the Superior Court of Cook county; the Hen. Elliott Anthony, Judge, presiding.
    Opinion filed January 27, 1886.
    This was an action on the case brought by appellant against appellee to recover damages under the statute, for the killing of her husband. The declaration containod two counts.
    The first count recites that Edward A. Flynn, in his lifetime, was employed as a brakeman by defendant at its Twelfth street yard, January 23, 1884, and was then engaged as such on a certain -freight train and locomotive, and was using all proper and ordinary care and diligence; that it was the duty of defendant to have said locomotive in a reasonably safe and proper condition; that defendant suffered said locomotive to he and remain in a bad and unsafe condition and repair, by means whereof it leaked and caused large quantities of water to fall on. the track, which were converted into ice by the extreme cold, thereby causing the said Edward A. Flynn, whilst so engaged, to slip and fall under the freight cars, and that he died from injuries thereby received; that plaintiff is his widow, and that he left him surviving Stephen Flynn, his son.
    The second count is. similar to the first, but avers that it was the duty of Edward A. Flynn, in braking, to be near and adjacent to the train; that it was the duty of the defendant to have its locomotive in a reasonably safe and proper condition and repair, and the rails in a reasonably safe condition and to have so kept them; that the defendant wrongfully and negligently suffered said locomotive and track to be and remain in bad and unsafe condition, and the rails and track to be covered with ice, by means of a leakage of water from said locomotive, by means of which the said Edward A. Flynn slipped and fell, etc.
    The case was tried by a jury, and at the conclusion of the plaintiff’s, evidence, the counsel for the defendant moved the court to-exclude the evidence for the plaintiff from the jury, whereupon the court gave to the jury the following instruction :

      “ The jury are instructed that upon the facts in this case as proved by the evidence, the plaintiff is not entitled to recover, and that your verdict therefore will be for the defendant, not guilty,” to the giving of which instruction the plaintiff then and there excepted. The jury found for the defendant. The plaintiff moved the court for a new trial, which motion being overruled, the plaintiff duly excepted, and appealed to this court.
    Mr. B..M. Shaefneb, for appellant.
    Messrs. Sleepbb & Whiton, for appellee.
   Wilson, J.

Upon a careful consideration of the evidence given and offered by the plaintiff, we are of opinion that it fairly tended to prove the issue, and was sufficient to have required the court to submit the case to the jury. It appeared from the evidence that the deceased was in the employ of appellee as a switchman at its Twelfth street yard in Chicago, his duty being to throw the switch and cut off cars.

On the day of the accident the deceased was engaged in cutting off the rear car of a freight train, consisting of an engine and about six cars, in doing which he stepped in, according to the usual custom in such cases, between the cars, while the train was slowly in motion, to remove the connecting pin by which the cars were coupled: The head of the pin had been broken off, rendering it difficult to pull it out, and while endeavoring to do so, the deceased slipped upon a ridge of ice formed by water falling from the engine and freezing by the side of the rail, and he was run over by the engine, receiving an injury which resulted in his death.

It was proven by the engineer in charge of the engine and by the switchman working with the deceased, that the engine in question had been out of repair for about two months prior to the accident; that there was a crack in one of the pipes ou) of which a stream of water, described by the engineer as about the breadth of his four fingers, and of the thickness of a sheet of papqr, flowed down upon the side of the track whenever the pump was worked or the engine was in motion. The water thus flowing down and freezing caused a ridge of ice on the side of the track upon which the deceased slipped and fell. The plaintiff offered to prove that this defective condition of the engine had been reported to the company and that they were expressly notified of the same prior to the time of the accident, but the court refused to allow such proof, and the plaintiff excepted.

We see no reason why the evidence offered was not admissible. The decoration avers that it was the duty of the defendant to have and keep its said engine in a reasonably safe and proper condition and repair, and that it wrongfully and negligently suffered the same to be and to remain in a bad and unsafe condition and repair, by reason whereof it leaked and caused large quantities of water to fall and be deposited upon the track, etc.

The law is well settled that a railroad company is bound to use reasonable care and diligence in providing and maintaining a safe road and safe machinery for the use of its servants. C. & N. Ry. Co. v. Swett, 45 Ill. 203; Ill. C. R. R. Co. v. Welch, 52 Id. 184. And it is equally well settled that it is bound to use all reasonable care to keep its track in a reasonably safe condition for the protection of its servants as well as passengers. In Ill. Cent. R. R. Co. v. Patterson, it is said: A railroad company is bound to keep its track and road in a safe condition, in order to secure the safety of all persons who may lawfully be upon it, either as passengers or servants.” Here one of the material and essential allegations of the declaration was that the defendant had not used due care and diligence in keeping its engine and tracks in safe repair and condition, and while the language of the court just quoted imposes a higher degree of responsibility in requiring a railroad to absolutely keep its track and machinery in a safe condition and repair than is required by the current of decisions on that subject, the rule, nevertheless, is, that the company must exercise reasonable and ordinary care and diligence to that end. The escaping water from the engine and its freezing upon the track was the producing cause of the deceased’s injury, and the plaintiff should have been allowed to show that the railroad company was notified of the imperfect condition of the engine which allowed the water to escape. Chi. & E. Ill. R. R. Co. v. Rung, 104 Ill. 646. The natural and necessary result of allowing the water to flow upon the track in midwinter was, that it would freeze and accumulate ice adjacent to the rail, rendering it more or less dangerous for switchmen when in the act of coupling and uncoupling cars; and the company must be presumed to have foreseen and knoAvn that accidents might result therefrom. As the company was required to use all reasonable diligence to keep its tracks in a safe condition for its employes, and also to foresee that the accumulation of ice near the rail would render it hazardous for their switchmen when coupling and uncoupling moving -cars, it was its duty when notified of the defective condition of the engine, to have used all reasonable means to avert the danger therefrom by repairing the engine, removing the ice, or adopting some other means reasonably at their command, to accomplish the desired result, and it was guilty of negligence in failing to do so.

But it is said the danger was patent to the deceased, and as he assumed the risk he must abide the consequences. Whether the danger was patent and whether the deceased was chargeable with a want of care depends upon a variety of circumstances. The ice may not have been equally distributed and the deceased may not have been aware that there was a ridge of ice at the particular spot where he attempted to uncouple the cars; the ice may have been hidden by a covering of snow ; the light may have been dim, and in his haste deceased may not have had time to carefully look. These Avere all matters which should have been submitted to the jury in determining the question whether the deceased Avas in the exorcise of due care. We can not say, as a matter of law, that he was not.

A motion to strike out the plaintiff’s eAddence, being in the nature of a demurrer to the evidence, admits not only all the facts proved, hut also every conclusion which the jury might fairly and reasonably infer therefrom. Lawrence v. Mut. Life Ins. Co., 5 Bradwell, 280, and cases there cited.

We think the evidence on the part of the plaintiff, given and offered, clearly tended to show a cause of action, and nncontradicted was sufficient to make a prima facie case ; and that the court erred in taking it from the jury. The judgment is therefore reversed and the cause remanded for a new trial.

Reversed and remanded.