author: Mr. Justice Frost

text:
    John L. Scranton, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    1. Negligence—as to crossing signals. Held, under the evidence, that it was for the jury to determine the questions of fact whether the crossing signals were given or whether whistles were blown at or near the crossing, etc.
    2. Negligence—how proximate canse determined. Held, under the evidence, that it was for the jury to determine what was the proximate cause of the injury complained of.
    3. Contributory negligence—approaching railroad crossing. Held, under the evidence, that it was for the jury to determine whether the plaintiff was in the exercise of ordinary care in approaching the crossing under the circumstances shown by such evidence.
    4. Contributory negligence—ivhat not as a matter of law. The omission of a person to look and listen as he approaches a railroad crossing, will not bar a right of recovery in the ease of a collision resulting in injury, if the circumstances previous to the injury would absolve the person from the necessity to look and listen.
    Action in ease for personal injuries. Appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 9, 1911.
    Rehearing denied November 8, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    W. Ii. Crow and William Mumeord, for appellant.
    W. E. and A. Clay Williams, for appellee.
   Mr. Justice Frost

delivered the opinion of the court.

This is an appeal from a judgment for $5000 obtained by appellee against appellant for a personal injury sustained by appellee at a highway crossing over appellant’s track, about a mile east of the village of Nebo in Pike countjr. Defendant’s track at the point of the accident runs practically east and west, and is in the center of its right of way, which is 100 feet wide, and is on a downgrade towards said village of Nebo, but is elevated where it crosses the highway from 12 to 14 feet above the level of the surrounding country. The highway approaches the track from the south with a steep grade or embankment, having a rough and uneven surface, and covered with large stones. On the day in question, appellee, who lived a few rods south of the track, started from a point about one-fourth of a mile south of the track, with a heavy load of dirt, and with a team consisting of a horse and a mule. When he reached a point at about the south line of the right of way, he stopped his team, as he says, and listened for the cars; that he heard no bell or whistle and that he then started up the embankment. From that point on, appellee was watching his team to avoid the obstructions in the highway, and when he came to the crossing, he heard the engine whistle about ninety feet east of the crossing; that he instantly pulled back his team, and just as the engine reached the crossing, two shrill blasts or “toots,” as he called them of the whistle were blown, causing the mule of his team to rear and plunge to the left, and thereby appellee was thrown from his wagon and injured. Appellee’s principal claims of negligence upon the part of appellant, are the failure to give the statutory crossing signals, approaching the highway at a high rate of speed, and blowing the engine whistle so near the highway that it frightened his team. Upon the questions whether crossing signals were given or whistles blown at or near the crossing, and the speed of the train, the evidence is contradictory. Appellee testified that he heard no bell or whistle until the train was within ninety feet of the crossing. Charles Stark and John Wilson testified that they were in an orchard from 30 to 50 rods north of the track and about 87 feet east of the crossing; that as the train emerged from a cut nearly one-half mile east of the crossing they particularly observed to see whether the signals would be given; that no signals were given at the whistling post or any bell rung or any whistle sounded at any point from the whistling post west until the train reached a cattle-guard 98 feet east of the highway, when the whistle was sounded once; that the train was running at the rate of about 40 to 50 miles per hour. Bert Scranton, son of appellee, who had assisted his father to load the dirt, stood at a point east of the highway, about 70 rods from the crossing and about 80 rods from the whistling post. He testified that he particularly observed the train to see whether or not it would give the statutory signals, as he knew his father was driving toward the track and that he had had about time to reach it; that his view was unobstructed; that no signal was given at the whistling post or at any point west of it until the train reached the cattle-guard, when a whistle was blown; that the train was running at about 30 or 40 miles an hour. Ernest Miller, who was driving in a buggy west on a road about one-quarter of a mile south of the railroad, and fifteen rods east of the highway, testified he heard the train coming from the east; that he did not hear any bell or whistle until about near the crossing; train was running at a good speed and seemed to be gliding down grade. George W. Autrey testified he was about 180 rods southeast of the train when it reached the whistling post; he did not hear a bell or whistle; train was coasting and made no noise, nor emitting any steam or smoke. W. C. Oliver, defendant’s engineer, testified tlie train was drifting down grade at about 30 miles per hour; that he blew the engine whistle at the whistling post, and that the bell was ringing continuously from the post to the crossing; that he did not blow a whistle at the crossing. Scarborough, the fireman, testified the engineer blew the whistle at the whistling post, but not at or near the crossing; that he rung the bell continuously from the post to the crossing. Hanback, head brakeman, testified to the same effect. Bead, the conductor, heard the whistle east of the crossing, which he took for a crossing signal. Ooots, the rear-brakeman, testified practically the same as the head brakeman.

It was for the jury to determine the questions of fact whether the crossing signals were given or whether whistles .were blown at or near the crossing, and the speed of the train. We cannot say that their conclusion was wrong.

There was much testimony in the record as to the physical condition surrounding appellee at the time with reference to the presence or absence of obstructions to his view of the train from different points east as it approached the crossing, and as to his ability to have observed the train after he had looked and listened as he says at the south line of the right of way, but we do not think it necessary to discuss it in this opinion. It was for the jury to determine from all the evidence whether appellee was in the exercise of ordinary care in approaching the crossing under the circumstances, taking into consideration the facts, if such were the facts, that before he started up the grade 50 feet from the track he looked and listened for the train; that his attention was directed to avoiding stones in the highway; that no signals were given at the whistling post or at any place west thereof until about 90' feet west of the crossing; that the train was coming down grade at a high rate of speed without warning. We think the evidence sufficient to justify the jury in finding that appellee was exercising ordinary care under the circumstances. The omission of a person to look and listen as he approaches a railroad crossing, will not bar a right of recovery in the case of a collision resulting in injury, if the circumstances previous to the injury would absolve the person from the necessity to - look and listen. Henry v. C. C. C. & St. L. Ry. Co., 236 Ill. 219; Chicago & Alton R. R. Co. v. Pearson, 184 Ill. 386.

There may be various modifying circumstances excusing the party from looking and listening, and that being the case, a mere failure to look or listen cannot be pronounced negligence per se. C. & N. W. Ry. Co. v. Dunleavy, 129 Ill. 132.

It was also a question for the jury to find the proximate cause of the injury, whether it was the failure of appellant to give the statutory signals, or the management of the train at the crossing with reference to speed and sounding the whistle or bell. Proximate cause may be deduced from a failure to give statutory signals. The jury had the right to conclude that if they had been given at.the usual place and in the required manner, appellee would have heard them, and would not have approached so near the track, that the motion of a train or sound of the whistle or any other cause would not have had any disturbing effect upon his team, and in that event no injury would have occurred. Or the jury may have found that running the train at a high rate of speed down grade over a dangerous crossing, and sounding the whistle as it passed appellee’s team, was the proximate cause. There is sufficient evidence in the record to sustain them in either of these conclusions.

Appellant complains of the action of the Circuit Court in refusing certain of its instructions, and have discussed in their brief refused instructions nine, ten, eighteen and twenty-one. Instructions nine and ten required plaintiff to stop his team and listen before he approached the crossing. Instructions eighteen and twenty-one required him to look east some time after he approached the crossing. Under the authorities cited these instructions do not state the law correctly, and there was no error in refusing them.

Finding no error in the record, the judgment must be affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    J. J. Andrews et al., Executors, Appellees, v. A. J. Stinson et al., Appellants.
    1. Pleading—what not plea in abatement. A plea which sets up that by reason of some extraneous matter the jurisdiction which the court originally had has been ousted, is one in bar and not in abatement.
    2. Partnership—when contract extension of. Sold, that the contract in question in this ease, operated merely to extend the time for the settlement of an old partnership and did not create a new one.
    Appeal from the Circuit Court of Hogan county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 9, 1911.
    Welty, Sterling & Whitmore, for appellants; Adams, Bobb & Adams, of counsel.
    Craig & Kinzel and Lawrence B. Stringer, for appellees.
   Mr. Justice Frost

delivered the opinion of the court.

January 2, 1905, Baker P. Andrews entered into a co-partnership agreement with appellant, A. J. Stinson, and Nelson P. Hand, under the firm name of Stinson & Hand, to carry on the lumber business in the city of Chicago,- for a period of three years, with a capital of $80,000, Andrews to have a half interest in the co-partnership and said Stinson and Hand each a one-fourtli interest, with a provision to increase the capital stock at the end of the first year $8,000, proportionately among the partners, as to their interests, and with a like provision for a further increase of capital of $8,000 at the end of the second year, each partner to draw two hundred dollars per month from the business. July 22, 1906, Andrews died and appellees were appointed executors of his will and duly qualified as such. The fourth 'paragraph of Andrews’ will expressed the desire and direction of Andrews that his executors should continue the lumber business for five years and gave them power to discontinue old and form new partnerships. On the death of Andrews the firm of Stinson & Hand filed an inventory under section 86 of the act of the Administration of Estates. The partnership agreement provided that the surviving partner should have one full year and no longer to settle up the affairs of the partnership. August 9, 1907, Andrews’ executors agreed with the surviving partners to continue the partnership agreement until January 15,1908, without modification of its terms, and with the express stipulation that the partnership affairs should be then settled and closed, as provided in the original agreement. The business of the firm of Stinson & Hand was carried over under this agreement until March 12, 1908. In the meantime Stinson & Hand engaged in business not connected with the firm’s affairs and had drawn from the assets of the firm and it became impracticable for them to settle the co-partnership affairs as provided in the extension agreement, and on said last named day a new agreement was entered into by appellees with said Stinson & Hand, reciting the original agreement and the extension, and that it was impracticable and not for the best interests of all parties to settle the co-partnership affairs as provided in the articles of- extension, adjusting the interests of the partners and equalizing them as provided in the original agreement as to capital and profit, providing for the payment of certain notes by Stinson & Hand and by Hand individually to the executors to equalize the interests of the partners, providing also for the repayment to the co-partnership by Stinson & Hand of $9637.09 diverted by them from the firm’s assets and providing that Stinson and Hand devote their time and attention to the business and render monthly statements showing the condition of the business, and for the withdrawal of $250 per month by Stinson and Hand and the executors and for certain other matters unnecessary to state. This last agreement was to commence January 31, 1908, and continue until January 31, 1909. At the expiration of this last agreement nothing had been done toward’ settling the co-partnership and its affairs were placed in the hands of one W. A. Irvin to take charge of and manage.

August 24, 1909, appellees filed a petition in the County Court of Logan county for a citation against A. J. Stinson and N. P. Hand to answer their petition and to make a full settlement of the affairs of the co-partnership. A demurrer was filed by A. J. Stinson individually to the petition and sustained by the County Court, and leave was given to appellees to file an amended petition.

To this amended petition a plea to the jurisdiction of the court was filed by Stinson individually to which the petitioners demurred. The demurrer was overruled and judgment on demurrer entered dismissing the amended and original petitions for want of jurisdiction. Prom this order and judgment of the County Court an appeal was taken to the Circuit Court of Logan County, where appellees’ demurrer to the plea of Stinson was sustained and rule entered upon Stinson & Hand to answer the petition. Appellant, Stinson, elected to stand upon the plea and judgment was entered against Stinson & Hand for costs and citation ordered to issue as prayed, and A. J. Stinson brings the cause by appeal to this court.

It is urged by appellant that the facts set forth in the plea show that a new partnership agreement was entered into in virtue of the contract of March 12, 1908; that the fourth clause of the will of Baker P. Andrews provided this might be done and if this was a new co-partnership agreement and not a mere extension of the former one, the County Court was without jurisdiction to order a citation for the reason that a court of equity only had jurisdiction to require an accounting of its affairs.

Two questions are presented by the record. The .first one is a question of pleading. The parties to this suit have treated the plea of appellant to which appellees’ demurrer was overruled in the County Court and sustained in the Circuit Court as a plea in abatement, and it will be so considered here.

Even if the County Court did not have jurisdiction by reason of the setting up in said petition of the- so-called new co-partnership contract of March, 1908, the filing of the amended petition omitting the matter objected to as ousting the court of jurisdiction left the petition to stand upon the original partnership agreement of which the County Court had undoubted jurisdiction to hear and determine, and a plea in abatement could not, by the introduction of extraneous matter, oust that court of jurisdiction. The plea in effect said that the matter of which the County Court had jurisdiction had been adjusted by an agreement which left no matter for that court to determine. This is the office of a plea in bar rather than one in abatement. If the County Court did not have jurisdiction of the subject of settling co-partnership matters at all, such want of jurisdiction might be taken advantage of at any time, but said court having jurisdiction of the subject-matter of the original co-partnership in view of the death of Andrews, it undoubtedly had the right to hear and determine the matter of the amended petition even though it might appear that by reason of the acts of the parties another co-partnership had been formed that it did not have jurisdiction to adjust.

The claim of the appellants is that a new co-partnership was formed by the agreement of March 12, 1908, distinct from the old. How then can the fact of the new one being formed be pleaded in abatement to the jurisdiction of the County Court to adjust the old? Appellants cannot claim that the so-called second extension is a new co-partnership the adjustment of which is only cognizable in equity, and at the same time claim it is so connected with the old one that by its union the County Court is without jurisdiction to settle the old one.

Beyond the question of pleading and determining the case upon the merits of the controversy, we think the action of the Circuit Court was right. It is claimed that by the agreement of March 12, 1908, there was a complete adjustment and settlement of the old partnership matters and that an entirely new partnership was formed. We have no means of knowing what the actual intention of the parties to this agreement was save as it appears from their acts and the agreement itself in view of-the situation presented when it was made. We are asked to hold that the executors who have been endeavoring to close up the old partnership affairs entered upon an entirely new one. A careful reading of the March agreement convinces us that it was the intention of all the parties that the agreement was made to adjust the affairs of the old partnership and continue it a sufficient length of time so that the terms of the adjustment might be worked out. The firm of Stinson & Hand owed the executors $6178.52 as evidenced by a promissory note payable in one year. A. J. Stinson and 1ST. P. Hand individually guaranteed tbe firm of Stinson & Hand tbe payment of $9737.09 for the purchase of land made by them outside the partnership business. A. J. Stinson owed the firm $4000. Provision is made in the agreement looking to the conversion by Stinson & Hand of their individual assets to reimburse the firm for their debts, and the collection and disposition of the assets of the firm of Stinson & Hand. It is hardly reasonable to suppose that the executors would enter into a new co-partnership for the short space of one year having a capital stock of nearly $100,000 of which they were furnishing one-half to carry on a lumber business in Cook county, the same to be controlled and managed by A. J. Stinson and N. P. Hand, when they had been endeavoring ever since the death of Andrews to get the affairs of the old co-partnership settled. The first extension agreement of the affairs had failed of its purpose by reason apparently of the acts and conduct of Stinson and Hand, and we cannot believe that in view of what had transpired with reference to the manner in which Stinson and Hand had conducted themselves ifi connection with the partnership that the executors would be very likely to enter into any new co-partnership with them. While it may be conceded that the March agreement may in form seem to create a new partnership, it is quite evident that it was the intention of the parties to settle the old co-partnership, and that this second extension was adopted for that purpose only and not for the purpose of embarking upon a new business.

In our opinion the County Court had full jurisdiction of the parties and subject-matter in controversy, and that the Circuit Court was correct in sustaining appellees’ demurrer to appellants’ plea. The judgment of the Circuit Court will therefore he affirmed.

Affirmed.


text:
    Clarence Long, Appellee, v. Chicago, Bloomington & Decatur Railway Company, Appellant.
    1. Master and servant—duty to furnish safe appliances. It is the duty of the master to make a proper inspection of appliances and not to furnish to the servant defective and dangerous ones.
    2. Master and servant—when doctrine of assumed, rislc does not apply. Where both master and servant know of a defective appliance, but the servant does not know that the defect subjects him to the risk of an injury, he is not held to have assumed the risk, unless he should have comprehended the danger by the exercise of ordinary care.
    Action, in case for personal injuries. Appeal from the Circuit Court of De Witt county; the Hon. W. G-. Cochran, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 9, 1911.
    Rehearing denied November 11, 1911.
    Lemon & Lemon, for appellant; George W. Burton, of counsel.
    Stone & Gray and Herrick & Herrick, for appellee.
   Mr. Justice Frost

delivered the opinion of the court.

This is an appeal from a judgment for $1000, which appellee obtained against appellant in the Circuit Court of DeWitt county for a personal injury sustained in the operation by appellee of a lifting jack, while in appellant’s employ as a section-hand. Plaintiff testified that a switch frog had been raised by the jack, and as a car was approaching, the foreman told him to trip the jack, and that he walked over to the jack, raised the lever, threw the trip-lock over, and started to press down; that something slipped and the lever flew up and broke his right arm, about two or three inches below the elbow. Numerous charges of negligence on the part of the defendant are set forth in the declaration, namely, that the ratchet and notches on the jack had become worn so that it would not properly hold, and the bolt coming through the ratchet was loose and worn and dangerous to use in raising and lowering a track; that the jack was sprung, loose and insecure, and had an improper trip-hook; and that the same broke and caused the injury; that the plaintiff was not experienced in the use of the jack, and that it was a complicated and dangerous tool, and that defendant failed to warn plaintiff in using it; that the defendant negligently failed to inspect the jack, and that the notches of the jack had become so worn that they did not hold properly. The accident happened October 26, 1909. Plaintiff states he had worked the lever of the jack eight or ten times before. At the time of the accident three men were working raising the track. There is evidence in the record that the jack had been used for four or five years; that it had slipped or kicked the day before and several times previous; that the teeth of the ratchet and the dogs were worn to some extent, that the trip-hook was worn, and that it broke on the occasion in question, revealing a flaw in the iron. There is no evidence that plaintiff was negligent or failed to exercise ordinary care in doing what he was instructed to do.

Just what particular defect caused the injury, whether from a defective trip-hook, or the worn condition of the ratchet teeth, or the dogs, or because of the general worn-out condition of the jack, does not certainly appear from the evidence. Mr. L. II. Bond, roadmaster of the Springfield division of the Illinois Central Railroad, and thoroughly familiar with the operation of such matters, and a witness for appellant, testified that track jacks are under a very severe strain, and if worked a great deal, naturally wear; that if the jack had slipped on numerous occasions when weight had been put upon it there must have been something the matter with it; something would have to be wrong about it, either the ratchet or the dogs. While plaintiff may have used the jack before and knew its operation, it does not appear that he knew its condition was such as to make its operation dangerous, or that he knew what might be expected to happen from its use under the particular circumstances in question.

It was the duty of the defendant to make a proper inspection of appliances such as this, and not to furnish plaintiff a defective and dangerous instrument. The servant is- not required to make an inspection of tools to ascertain whether or not they are in a dangerous condition, but may assume that the master has performed his duty by exercising reasonable care to provide reasonably safe tools, unless they are what is known as common tools. The Allen B. Wrisley Co. v. Burke, 203 Ill. 250.

Where both master and servant know of a defective appliance, but the servant does not know that the defect subjects him to the risk of an injury, he is not held to have assumed the risk, unless he should have comprehended the danger by the exercise of ordinary care. The Chicago Screw Co. v. Weiss, 203 Ill. 536.

We do not think the jack in question comes under the head of common tools. It was quite a complicated affair with ratchets, levers, etc., and so complicated that it required expert examination and opinion to ascertain the cause of its working improperly.

The evidence warranted the jury in finding that plaintiff was exercising ordinary care at the time, and that the accident occurred from a defective condition of the jack, that was known or ought to have been known to the appellant by the exercise of ordinary care and diligence in tlie inspection of the jack, which it was its duty to have made.

The amount of the judgment is not excessive.

There was no error in the admission of the testimony of appellee’s mother, Mary Powers.

No error appearing in the record, the judgment will be affirmed.

Affirmed.


text:
    Clara B. Deatrick, Administratrix, Plaintiff in Error, v. Lake Erie & Western Railroad Company, Defendant in Error.
    1. Passenger and carrier—when relation established. The mere fact that a person has a ticket and intends to take a train does not create the relation of carrier and passenger since it is further necessary that he be at some place under the control of the carrier and provided for passengers. So long as a person merely intends to be carried but has not reached any place provided for passengers or used for their accommodation, he is not a passenger.
    2. Contributory negligence—when person crossing railroad trades guilty of. To attempt to cross immediately in front of an approaching engine which the slightest diligence will reveal, is contributory negligence which will bar a recovery for a resulting injury.
    3. Contributory negligence—failure to loole and listen. Pailure to look and listen for an approaching train is contributory negligence where to have done so would have prevented the accident and where no conditions justified such failure and nothing caused an obstruction to the view.
    Action in case for death caused by alleged wrongful act. Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 9, 1911.
    Rehearing denied November 8, 1911.
    L. J. Owen and Livingston & Bach, for plaintiff in error.

      John E. Pollock, for defendant in error.
   Mr. Justice Frost

delivered the opinion of the court.

Plaintiff in error, as administratrix, brought suit in the McLean County Circuit Court to recover damages for the death of her husband, he having been struck and killed by a freight engine of defendant near the station platform of the joint depot of the defendant in error and the Big Four Railway Co. at Bloomington, December 15, 1910. At the close of plaintiff’s evidence, the Circuit Court directed a verdict for defendant, and from the judgment entered on such directed verdict against plaintiff in error, she has taken this appeal. It is claimed that at the time of his death, plaintiff’s intestate was returning to his home near Leroy, Illinois, a station on the Big'Four railroad; that he had a return trip ticket in his pocket on said road, and that he intended to take the Big Four train due at the depot at 6:35 p. m. on said day. The depot, which is about 150 feet long, is situated about 115 feet east of the east line of Main street in the city of Bloomington, which street runs north and south. The tracks of the defendant in error and the Big Four run practically parallel south of the depot, about 18 feet apart. The level of the platform of the depot and the track of the defendant is about the same, the rails being from a quarter to half an inch lower than the platform. Just north of the depot grounds and east of Main street is the Relay saloon. About 6:35 p. m. plaintiff’s intestate was seen standing by a telegraph pole at the corner near that saloon. He probably heard the train coming and started immediately toward the depot. The proof shows that he was hurrying to get to the platform of the Big Four Railroad and did not pay any attention to the approach of defendant’s engine coming from the west. About five feet west of the water plug situated on the Big Four side of the concrete walk between the Lake Erie and the Big Four tracks, he was struck by a Lake Erie engine and pushed some distance along the track.

Plaintiff in error claims that deceased was a passenger on the Big Four Railroad and that under the arrangement between the two companies for the joint use of the depot, defendant owed the same duty as the Big Four. The mere fact that a person has a ticket and intends to take a train does not create the relation of carrier and passenger since it is further necessary that he be at some place under the control of the carrier and provided for passengers. So long as a person merely intends to be carried but has not reached any place provided for passengers or used for their accommodation, he is not a passenger. C. & E. I. R. R. Co. v. Jennings, Admr., 190 Ill. 478.

Deatrick did not attempt to cross defendant’s track at the usual place for passengers to cross in taking the Big Four train, but attempted to cross the track near the water plug, a distance of from fifty to sixty feet west of the depot building, and we do not think he was proceeding properly to become a passenger on the Big Four road.

Defendant insists that the accident was due to the failure of plaintiff to exercise the slightest degree of care at the time in question. While it may be true that defendant was negligent in running its engine without a lookout or ringing a bell or sounding a whistle or otherwise giving any warning of its approach to the depot as testified to by some witnesses, such negligence did not relieve plaintiff’s intestate from exercising ordinary care in attempting to cross defendant’s track. To attempt to cross immediately in front of an approaching engine which the slightest diligence would have revealed to him must, we think, be considered by all reasonable minds an act of negligence. There was no' obstruction to the view and no circumstances justifying a failure to look and listen. The engine was coming in slowly and the headlight was burning brightly. The testimony shows that there were several lights under the eaves of the depot building giving sufficient light to see for a considerable distance from the depot. Several witnesses testified that if Deatrick had looked he could have seen the engine coming. A glance to the west as he arrived at defendant’s track would have revealed the presence of the engine and enabled him to have avoided danger in crossing the track at that point. Failure to look and listen for an approaching train is contributory negligence where to have done so would have prevented the accident, and where no conditions justified such failure and nothing caused an obstruction to the view. C. R. I. & P. Ry. Co. v. Jones, 135 Ill. App. 380; C. & A. R. R. Co. v. Blake, 125 Ill. App. 336.

We are of opinion that Deatrick did not become a passenger on the Big Four road and that defendant owed him no duty as such, and further Deatrick’s death was caused by reason of his failure to exercise ordinary care in crossing in front of defendant’s engine.

The action of the Circuit Court in directing a verdict was correct and the judgment will be affirmed.

Affirmed.


text:
    Charles J. Mullikin, Administrator, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Abatement—when plea does not lie. The pendency of a suit subsequently commenced cannot be pleaded in abatement or bar of the first action.

      2. Abatement—when plea cannot he filed. A plea in abatement cannot be filed after tbe general issue where the cause of abatement arose before the general issue was filed.
    3. Conteibutory negligence—how Question determined. The question of contributory negligence is not to be judged solely in the light of subsequent events but the conditions existing at the time of the accident and the consequences reasonably to be anticipated are to be taken into consideration.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Vermilion county; the Hon. W. B. Scholeield, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 9, 1911.
    Rehearing denied November 7, 1911.
    George B. Gillespie, for appellant; Glennon, Cart, Walker & Howe, Bearick & Meeks and Gillespie & Fitzgerald, of counsel.
    F. B. Hamill and 0. B. Dobbins, for appellee.
   Mr. Justice Frost

delivered the opinion of the court.

Appellee’s intestate, Mrs. Mary Alexander, was instantly killed at a crossing of the railroad track of the appellant at Fourth street in the city of Champaign, July 28, 1909, by being struck by a train of appellant proceeding westerly. Mrs Alexander approached appellant’s track on Fourth street from, the north and was attempting to save the life of her infant son, aged two and one-half years, who was coming onto the track in front of the approaching train from the south, and who was also killed at the same time with his mother. Appellee recovered a judgment for Mrs. Alexander’s death in the sum of $1665.35, and the case is here on appeal from that judgment. The declaration, alleges that the proximate cause of the injury was a violation of an ordinance of the city of Champaign, in running more than ten miles per hour over the crossing, within the city limits. Appellant assigns for error the action of the court in sustaining appellee’s demurrer to the plea to the jurisdiction of the court, because suit between the same parties for the same action was pending in the United States Circuit Court for the Eastern District of Illinois. The plea of appellant alleges that the cause pending in the United States Circuit Court was commenced April 15,1910. The record shows that this suit was begun April 13, 1910. The general issue in this case had been filed previous to the plea in abatement. “The pendency of a suit subsequently commenced cannot be pleaded in abatement or bar of the first action.” Consolidated Coal Co. v. Oeltjen, 189 Ill. 85.

This suit was for less than $2,000 and the Federal Court had no jurisdiction of it and when this suit was commenced no other suit was pending in the Federal Court nor one that could be removed there. “A plea in abatement cannot be filed after the general issue, when the cause arose before the general issue was filed.” McDavid v. Rork, 92 Ill. App. 482. The demurrer to the plea was properly sustained.

It is also claimed that Mrs. Alexander acted negligently in risking her own life in the attempt to save her child and that her death was caused, not as a proximate result of any negligence charged in the declaration, namely, a violation of the ordinances of the city of Champaign in running its train more than ten miles an hour. Whether Mrs. Alexander was guilty of negligence under the circumstances was peculiarly a question of fact for the jury. Her conduct is not to be judged solely in the light of subsequent events. If such were the rule it would bar all liability in such cases. In West Chicago St. Ry. Co. v. Liderman, 187 Ill. 463, the court, speaking of the conduct of a father in a similar case, said: “It was his duty to exercise his judgment as to whether he could probably save the child without serious injury to himself. If, from the appearances, he believed that he could save the child, it was not negligence to make an attempt to do so, although, believing that possibly he might fail and receive an injury himself. He had no time for deliberation. He must act instantly, if at all, as a moment’s delay would have been fatal to the child. The law has so high a regard for human life, that it will not impute negligence' to an effort to preserve it, unless under such circumstances as to constitute rashness in the judgment of prudent persons. For a person engaged in his ordinary affairs, or in the mere protection of property knowingly and voluntarily to place himself in a position where he is liable to receive injury of a serious character is negligence which will preclude a recovery for an injury so received; but when the exposure is for the purpose of saving life, it is not wrongful, and therefore not negligent, unless such as to be regarded either as rash or reckless.”

It is claimed that Mrs. Alexander was negligent in permitting her children to be where they might be injured in crossing appellant’s tracks. This was likewise a question of fact for the jury. West Chicago St. Ry. Co. v. Liderman, supra.

Appellant insists that the city ordinance was not violated, or if it was, the violation was not the proximate cause of the injury. We think the jury were fully justified in finding that the train was going at a greater speed than ten miles per hour permitted by the ordinance. Several witnesses testified that it was going from 30 to 35 miles an hour as it passed Fourth street. Was the excessive speed the proximate cause of the injury? It is probable that had this train been moving at the rate allowed by the ordinance. Mrs. Alexander would have arrived in time to have saved her child without injury to herself. It sometimes requires a careful weighing of probabilities and the natural course of human conduct to determine the question of proximate cause. Proximate cause is ordinarily a question of fact for the jury.

We do not think we ought to disturb their finding that the unlawful speed of the train was the proximate cause of the injury. ,

The instructions for appellee were not artfully drawn and may be subject to some criticism, but we do not think the errors suggested sufficient to warrant a reversal on that account, and the judgment will therefore be affirmed.

Affirmed.


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    Erasmus B. Allison, Appellee, v. Ellis Y. Allison et al., Appellants.
    Appeals and errors—when assignments of error not considered. A party who appears to have no interest in the subject-matter of a controversy and who by his pleadings has disclaimed any interest will not be heard upon appeal with respect to an action of the court which did not affect him.
    Partition. Appeal from the Circuit Court of Edgar county; the Hon. William B. Sci-iolfield, Judge, presiding. Heard in this court at the June term, 1910.
    Affirmed.
    Opinion filed October 9, 1911.
    Shepherd & Trogdou, for appellant; James Essick, of counsel.
    Frank T. 0 ’PIaxr, for appellee.
   Mr. Justice Frost

delivered the opinion of the court.

This is a partition suit brought by appellee, Erasmus V. Allison, against appellant, Ellis Y. Allison, Mary Virginia Allison and the Trevett-Mattis Banking Co. Mary Virginia Allison is a niece of appellee, to whom appellee had, prior to the commencement of this suit, deeded an undivided one-half interest in the premises sought to be partitioned. Appellant, Ellis Y. Allison, is a nephew of appellee, and was made a party to the partition bill because, as is alleged in the bill, said Ellis Y. Allison, “has claimed some interest, right or title in the real estate sought to be partitioned.” The bill denies that said Ellis Y. Allison has any interest. The Trevett-Mattis Banking Co. were made defendants because of a mortgage held by it. Ellis Y. Allison filed an answer denying that he has any interest in the land, but alleging in his answer that appellee is in his dotage, feeble in mind and body, and controlled in his actions, life and business affairs by one William D. T. Travers, and appellant, Mary Virginia Allison; that the partition is a sham, and asks the court to appoint a guardian ad litem or next friend to care for the interests of •appellee, Erasmus V. Allison, and to inquire into his mental capacity to conduct the suit or to make the deed to Mary Virginia Allison.

Appellee excepted to the amended answer of Ellis Y. Allison, and in- the decree certain paragraphs in the answer, namely, paragraphs five, six and seven, covering the above allegations, were stricken out by the court, leaving the appellant’s answer to stand upon his disclaimer and allowing partition of the land as set forth in the bill. Appellant, Ellis Y. Allison, has assigned numerous errors upon the action of the court.

It is difficult to see what legal or equitable right Ellis Y. Allison has to complain in this matter. ITe was an improper party to the suit. He had no interest in the land sought to be partitioned, and his answer disclaimed any interest therein. His attempt in his answer to have a guardian ad litem or next friend appointed for the appellee and inquiry made into appellee’s mental condition of the influence exercised by others over him, was manifestly improper, and he is not entitled to be heard in this court upon the 'matters assigned for error.

The decree was proper and should be affirmed.

Affirmed.


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    W. E. Garrett, Appellant, v. Anna Connor et al., Appellees.

      Verdicts'—when not disturbed. A verdict will not be set aside on review as against tbe weight of tbe evidence unless clearly and manifestly so. j
    Appeal from tbe Circuit Court of Vermilion county; tbe Hon. E. E, E. Kimbrough, Judge, presiding. Heard in tbis court at tbe May term, 1911.
    Affirmed.
    Opinion filed October 9, 1911.
    Tilton & Taylor, for appellant.
    Terrence Byrne Cosgrove, for appellees.
   Mr. Justice Frost

delivered the opinion of the court.

August 6,1906, appellant leased to appellees several rooms in a certain building in the city of Danville, Illinois, for one year from August 25, 1906, at a monthly rental of $47.50, with a five year renewal clause in the lease. Appellees remained in possession of the premises in question, but failed to pay rent from October 1, 1908, to October 1, 1909, and the several suits for the rent of that year were brought in justice court and consolidated in the Circuit Court, and upon the trial, verdict' was had and judgment rendered in the Circuit Court of Vermilion county for $420, $150 less than the stipulated rent, from which judgment plaintiff has appealed to this court. The defense in this case was that plaintiff had supplied hot water to defendants, and that the lease provided for city water, and that such covenant was not fulfilled by furnishing hot water. The evidence in the Circuit Court was that “city water” as provided for in leases in the city of Danville, is understood to mean water supplied by the Danville Water Company, and that it was understood and expected by lessees that it would be cold, at least that it would not be warm or hot. We are inclined to adopt this view of the matter, and to hold that by furnishing- hot water appellant did not comply with the terms of the lease.

The jury allowed a reduction in the rent fully within the testimony of the witnesses. We are satisfied the judgment is right and that the record is without error, and the judgment is, therefore, affirmed.

Affirmed.


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    Frances E. Arrowsmith, Plaintiff in Error, v. Old Colony Life Insurance Company, Defendant in Error.
    1. Insurance—when application part of contract. Where an intent to make the application a part of the policy appears, the court, no matter what the phraseology may be, will read the application into the policy of insurance.
    2. Insurance—how contract construed. If language of an insurance policy is ambiguous it will be most strongly construed against the company in favor of the insured.
    3. Insurance—how period of incontestability determined. If the original application was to one insurance company and the suit brought is upon the policy issued by another company pursuant to a re-insurance agreement, an incontestable clause commences to run from the date of the first application unless the intention of the parties to the contract is clearly to the contrary.
    Assumpsit. Error to the Circuit Court of McLean county; the Hon. ColostiN D. Myers, Judge, presiding. Heard in this court at the May term, 1911.
    Reversed and remanded.
    Opinion filed October 9, 1911.
    Rehearing denied and opinion modified November 7, 1911.
    Livingston & Bach, for plaintiff in error.
    DeMange, Gillespie & DeMange, for defendant in error.
   Mr. Justice Frost

delivered the opinion of the court:

This is an action upon a policy of insurance. A demurrer was sustained to the declaration, and judgment entered thereon against plaintiff:, and she brings a writ of error to reverse the judgment of the Circuit Court. Under the averments of the declaration, it appears that John E. Arrowsmith, plaintiff’s husband, on the 9th of September, 1907, made application to the Provident Life Insurance Company for insurance upon his life, which application was in writing, and upon that date said company issued its policy to him, for plaintiff’s benefit, in conformity with the terms and conditions of such application, and that afterwards the risks of said company were taken over and re-insured by defendant in error, the Old Colony Life Insurance Company; that pursuant to such re-insurance, March 17, 1909, defendant executed its policy of insurance to said Arrowsmith. The application of Arrowsmith to the Provident Life Insurance Co. stated that self-destruction of insured within two years from its date was not a risk assumed by the company. The policy of defendant issued to Arrowsmith provides that its policy of insurance is granted in consideration of the application to the Provident Life Insurance Co., and is made a part of the policy, and it also provides that defendant shall not be liable if death occurs from self-destruction within two years from its date. The declaration alleges that Arrowsmith committed suicide October 9, 1909, said date being more than two years after the date of the application, and less than seven months from the date of the defendant’s policy. The question for determination is whether the provision of defendant’s policy as to self-destruction shall relate to the date of defendant’s policy or to the date of the policy of the Provident Life Insurance Company.

Where an intent to make the application a part of the policy appears, the court, no matter what the phraseology may he, will read the application into the policy of insurance. Retta Blasingame v. The Royal Circle, 111 Ill. App. 202; Treat v. Merchants’ Life Association, 198 Ill. 431.

If the language of an insurance policy is ambiguous, it will be most strongly construed against the insurance company and in favor of the insured. A clause in an insurance policy providing that the policy shall be incontestable, except for non-payment of premiums, “if this policy shall have been in continuous force after two years from the date hereof,” will be held to refer to the date of the policy and not to the late of its delivery, even though there is a clause providing that the policy shall not be operative or binding until payment- of the first premium and delivery of the policy, which was at a date later than the date of the policy. Monahan v. Fidelity Life Insurance Co., 242 Ill. 488-9.

An incontestable clause which is made a part of a benefit certificate should be liberally construed in favor of the beneficiary of the insured. Seymour v. Mutual Protective League, 155 Ill. App. 21.

The application in this case having been made by the defendant a part of its policy, requires us to construe the policy in connection with the application and considering the application and the policy together the period of incontestability in ease of suicide is rendered uncertain, and in view of the foregoing authorities the policy should receive liberal construction and one most favorable to the insured. By so doing the period of incontestability would run from the date of the policy of the Provident Life Insurance Co., which will be considered of same date as the application, where there is no other averment of its date, it being unnecessary to make such averment.

In this view of the case the action of the Circuit Court in sustaining the demurrer to the declaratiou was erroneous, and for that reason the judgment will be reversed and the cause remanded.

Reversed and remanded.


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    P. M. Davidson, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Passenger and carrier—when relation does not exist. If a person has not placed himself in the care of the carrier the relation of passenger and carrier does not exist.
    2. Passenger and carrier—what does not justify hoarding train except from station platform. The fact that persons may frequently have boarded trains from a point other than the depot platform, does not justify the same, unless it be shown that the carrier consented thereto and approved of such course.
    Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1911.
    Reversed.
    Opinion filed October 9, 1911.
    Rehearing denied November 8, 1911.
    Graham & Graham, for appellant.
    George M. Morgan and John J. Bundy, for appellee.
   Mr. Justice Frost

delivered the opinion of the court.

Appellee obtained judgment for $5,000 damages in the Circuit Court of Sangamon county against appellant, for the cutting off of appellee’s left hand by a passenger train of appellant at its Decatur station, June 12, 1909.

The depot of appellant is west of its three tracks, the , track nearest the depot being known as a passing track, the next one east as the south-bound main track and the third, the north-bound main track. A platform extended from the depot out to the nearest rail on the north-bound track, and extended north and south on the west side of its tracks a distance of 512 feet from the Wabash crossing to El Dorado street. The platform was about 15 feet wide from a point about 20 feet south of the depot for a distance of about 150 feet to El Dorado street. Between the west rail of the passing track and the west rail of the north-bound track, the platform ran north and south about 350 feet, its south end being irregular and near a standpipe used by appellant’s engines for taking water. South of the standpipe, the space east of the 15 foot walk running to El Dorado street was filled in with ballast between the rails and between the tracks so that in most places only the rails projected above the surface. A short distance south of the wooden platform between the north and the south-bound tracks, there was a stake or stub end of a post projecting a few inches above the surface. On the day in question, appellee came to the depot about 10 o’clock p. m. and was informed, as he says, that the train was late, so that he then went to the Angle Hotel, which was situated southwesterly from the depot. From there, he returned to the depot down El Dorado street to the 15 foot platform, and started north toward the depot. When within about 50 feet of a train which was then standing on the south-bound track, he noticed that it was an Illinois Central train, and commenced to walk a little faster. Noticing some trucks, as he says, on the platform when within 25 feet of the engine, he stepped off the platform and walked across the passing track over the south-bound main track, proceeding toward the train, and when walking fast or running he struck his left foot against some obstruction and fell, his left hand going under the wheels of the train, which had then moved, as he says, about the length of a coach. The negligence charged in the declaration is the permitting of the post to be in the position where it was, causing appellee to fall. Appellant contends that this case should be reversed, first, because appellee did not properly offer himself as a passenger, and that defendant owed no duty to him except not to wantonly injure him, and second, that even though appellee was a passenger, appellant had provided a safe platform for its passengers, and that appellee was guilty of negligence in taking the route he did, and third, the presence of the stake or post was not the proximate cause of the injury.

Was appellee a passenger at the time of the injury? It is true the record discloses that he had purchased a ticket and was attempting to get upon the train, but unless he was proceeding properly, he would not thereby become a passenger. One becomes a passenger on a railroad train when he puts himself under the care and is received as a passenger by the company. The excuse given by appellee for not proceeding along the platform to where the passenger coach stood in boarding the train from the main platform was that there were some trucks obstructing the way. Appéllee, in his testimony on the trial, states there were three or four trucks. In a statement given by him previous to the trial he states there were two trucks, but the number or position of the trucks is not definitely shown by the evidence. Regardless of the number or position of the trucks, however, it does not appear but that appellee could have easily avoided them and reached the train in safety, by way of the main platform. Instead of doing this he chose to pass in front of the engine along a way not provided for passengers to reach the train when it was so dark that he could not see obstructions in his way.

The depot and platform of appellant were obvious. The place where trains stopped was known to appellee. He was familiar with the entire situation, and had-known it for years. He knew that there was no platform south of the standpipe. He knew he was getting off the boardwalk and did not know what the condition was between the tracks. He abandoned the board platform attended by trainmen which appellant offered him and attempted to become a passenger by going through a dark place between the tracks away from the place where the train crew could observe him. It was doubtless his intention to take the train from the east side while it was moving and for that purpose he was hurrying along in the dark without the ability to see any obstruction which might be in the way.

In the case of C. & E. I. Ry. Co. v. Jennings, 190 Ill. 478, the court said: “The company certainly has a right to know that the relation and duty exist, and the passenger jaxust be at some place provided by the company for passengers, or some place occupied or used by them in waiting for or getting on or off trains. Whenever a person goes into such place with the intention of taking passage, he may fairly expect that the company will understand he is a passenger and protect him. If he could be a passenger before reaching such a place there would be no limit or place where it could be said he became a passenger. The intention of taking a train would only prove a purpose to enter into the contract relation, but would not create it. ’ ’

In the case of Spannagle v. C. & A. R. R. Co., 31 Ill. App. 460, the court said: “When he became aware of the approach of the train, plaintiff endeavored to reach the depot to take the train and arriving at the platform after the train was in motion endeavored to get aboard, and was injured. Not having placed himself in care of the carrier, there was no relation between him and the carrier by which it became the duty of the carrier to hold its train for any length of time. For any injury he received while endeavoring to get aboard the train while in motion he must seek redress as a stranger. ’ ’

There is some proof in the record that passengers frequently boarded the south-bound train from the side opposite the depot and for that reason an invitation was extended to the plaintiff to use that way for boarding the train. There was no proof that the company consented and approved such acts, except that it had done nothing to make such a course by passengers impossible. This situation is very similar to the one that existed in the case of O’Donnell v. C. & N. W. Ry. Co., 106 Ill. App. 287, and the court in that case held that the plaintiff was negligent in not taking the way provided by the company.

In Raymond v. C. B. & Q. R. R. Co., 126 Ill. App. 240, the appellate court said: “Plaintiff proved that for a long time prior to his injury many other persons in going to the depot had crossed these tracks in the general course he was pursuing, and that the defendants had taken no steps to prevent such travel. How could defendants prevent foot passengers from passing along the tracks 1 Even if they had ' enclosed the station grounds at every other place they must have left open the places where their main and switch tracks cross the streets and pass into the station grounds. No law required them to erect barriers across their own tracks or to station guards at each track to forcibly eject foot travellers who leave the streets on such tracks. Defendants held out no inducement to foot passengers approaching its stations to believe that its trains would not go upon its side tracks nor did ifc authorize them to travel its tracks merely by its failure to mount a guard to eject them.”

It is claimed that the presence of the stake or stub was not the proximate cause of the injury; that there is no proof in the record that plaintiff struck his foot against the stub and that the evidence shows that his hand was cut off at least six feet south of the stub when if he had fallen by reason of striking his foot against the stub, in all probability his hand would have been cut off at a point at least six feet north of the stub. The view that we have taken of the case does not require us to discuss this point.

We are of the opinion that appellee did not become a passenger of the defendant on the occasion in question, and that appellant owed him no duty as such, and that appellee was guilty of negligence which contributed to his injury.

For these reasons the judgment of the court below will be reversed.

Reversed.

Finding of facts, to be incorporated in the judgment:

We find that' appellee did not become a passenger of appellant on the occasion in question, and that he was guilty of negligence which contributed to his injury.


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    F. W. Brinkmeyer, Appellee, v. Fred Miller Brewing Company, Appellant.
    Statute of frauds—when lease within. A lease of real estate covering the period of a year if executed by a purported agent of the owner is within the Statute of Frauds unless the authority of such agent to execute such lease is in writing.
    Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the May term, 1911.
    Reversed with finding of fact.
    Opinion filed October 9, 1911.
    Redmon & Hogan, for appellant.

      Henson & Gilbert, for appellee.
   Mr. Justice Frost

delivered the opinion of the court.

This is a suit brought by appellee to recover rents alleged to be due under a certain lease which he claims appellant, Fred Miller Brewing Co., entered into with him concerning a certain building in the city of Decatur. Judgment was obtained in the Circuit Court for $132.16, and an appeal was taken by appellant. Appellee, Brinkmeyer, owned a double brick building in said city, and he claimed appellant entered into said lease through its agent, John A. Lasswell, June 14, 1910. Lasswell, who lived in Bloomington, and claimed to be an agent of appellant, commenced negotiations for the renting of a part of the double building of appellee, to be used for a saloon, and the same day Lasswell drew up two leases, on printed forms, which, it is claimed, were the kind nsed by appellant, and the same were signed in duplicate by Brinkmeyer, and sent by Lasswell to appellant. After the leases were mailed to appellant, Lasswell concluded that he did not want any other person to rent the other part of the building for a saloon, and suggested that a clause be placed in the lease to that effect, and wrote a letter to appellee suggesting the placing of such a clause in the lease. A letter was then sent to appellee, purporting to be signed by appellant, per H. W. Boese, requesting, leave to insert such a clause in the lease. No evidence was introduced showing the connection of Boese with appellant, or proof of his authority to act in writing the letter. Appellant, afterwards, sent an agent to Decatur to investigate the matter of leasing, and having done so, concluded not to enter into the contract of leasing, and on July 23, appellant wrote to Lasswell informing him of their investigation and conclusion not to use the lease, and Lasswell, in a few days, reported the decision of appellant to appellee at Decatur.

The lease, as drawn, purported to be for a term of two years from July 1,1910. Appellant never entered into possession of the premises, but in the latter part of June, 1910, Lasswell advanced one month’s rent from his own pocket, to apply upon the lease. Appellant in its pleas, denied under oath, the making of the lease, and invoked the Statute of Frauds as a defense. There is no proof in the record that Lasswell was authorized in writing or otherwise to execute the lease, and without such proof his actions could not bind appellant. Without proof of either the authority of Lasswell or Boese to act for appellant in this matter, appellee was not entitled to recover under the pleadings, and the judgment must be reversed.

Judgment reversed with finding.

The clerk of this court will incorporate in the judgment a finding of fact that the defendant neither executed the lease prepared nor ratified the action of Lass-well.


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    Francis Lomax, Appellee, v. George Reisch et al., Appellants.
    1. Attractive nuisance—what not. A cellar left open, and unguarded is not an attractive nuisance within the rules which define such a nuisance ^vhere there is no evidence that the defendant knew that children were in the habit of playing about such cellar and no invitation is shown to have been extended to such children to play about the same.
    2. Negligence—when fencing not required. Excavations upon property not so near the street as to be dangerous to passengers upon the walk, do not have to be fenced to protect children from injury, who are in the habit of going upon the premises to play.
    Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1911.
    Reversed with finding of fact.
    Opinion filed October 9, 1911.
    Carl M. Reich, Rtieus M. Potts, W. H. Nelms and Alfred Adams, for appellants.
    John C. Snigg and John P. Shigg, for appellee.
   Mr. Justice Frost

delivered the opinion of the court.

Appellants owned a vacant lot situated on the southeast corner of North Fourth street and G-rand avenue in the city of Springfield, Illinois, having a west frontage on Fourth street of 40 feet and depth on the south side of Grand avenue of 162 feet, on which was an old cellar. Appellee, Francis Lomax, aged six years, and another hoy were playing a game called ‘ ‘ Push, ’ ’ near the northwest corner of the cellar, and in the play appellee, Lomax, was pushed into the cellar by his com: panion, and his left arm broken. For tbis injury he secured judgment for $125 and an appeal was taken to this court. Appellants’ liability if any, rests upon the doctrine comprehended in the attractive nuisance cases, that is, permitting a dangerous condition to exist, unguarded and easy of access for children, alluring and enticing to the youthful mind. In our opinion, the condition existing on appellants’ premises cannot be included in any of the cases where liability has been found to rest upon that doctrine. The so-called “Turntable Cases” bave special reference to dangerous and attractive machinery, luring children to experiment with its movements, and liable to cause injury when this is done. Shallow excavations on premises do not come within the purview either of the attractive nuisanee or turn-table cases. In the case of City of Pekin v. McMahon, 154 Ill. 141, there was a manifestly dangerous excavation, 200 feet long and 100 feet wide, where water accumulated to the depth of 14 feet, upon which were floating timbers, upon which a boy could climb and ride about on the water. Tested by that case, no liability can be found here. The cellar was about 31 % feet long and 18 feet wide, located 25 feet from the sidewalk on Fourth street, and 20 feet from the sidewalk on Grand avenue, with sloping banks so that persons could easily walk in and out of it. It had been filled in considerably with debris and its deepest places were estimated by different witnesses to be from two to four and a half feet below the level of the lot. There is no evidence in the record that appellants knew children were in the habit of playing in or near the cellar, nor had they extended any invitation or given any permission to children to play on the lot. There was nothing about the cellar that rendered it necessarily dangerous or likely to cause injury.

Excavations upon property not so near the street as to be dangerous to passengers upon the walk, do not have to be fenced to protect children from injury, who are in the habit of going upon the premises to play. Ratte v. Dawson, 50 Minn. 450.

The owner is not liable for the death of a boy who fell into an excavation upon his property and was drowned, if the excavation was not so near the street as to render it unsafe and dangerous. Klix v. Nieman, 68 Wis. 271.

In the case of Loftus v. DeHail, 133 Cal. 214, the owners of a lot situated in the populous part of a city, had removed a house therefrom which stood close to the street so that there was no danger therefrom to passengers on the right of way. The court held that the owners were not negligent in failing to guard it against children who were not there by license or permission and were not liable to tbe guardian of a child seven years of age, who was playing about the place, and who was pushed into the excavation violently by a younger boy in a fit of temper.

The fact that the land was attractive to the children as a play-ground, did not impose a duty upon the owner to guard the open cellar because of the mere possibility of accident to some who might be pushed into the excavation.

We find from the evidence as a matter of fact that the appellants were not guilty of any negligence in this case, and for that reason the judgment will be reversed.

Reversed.

Finding of fact to be incorporated in the record: We find as a matter of fact that the appellants were not guilty of any act of negligence charged against them in the declaration.


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    William H. Kizer et al., Appellants, v. A. C. Moffet, Appellee.
    Appeals and errors—when findings of chancellor not disturbed. Findings of fact by a chancellor will not be disturbed on review as against tbe weight of the evidence unless clearly and manifestly so.
    Bill in equity. Appeal from the Circuit Court of Cass county; the Hon. Guy Williams, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 9, 1911.

      Certiorari denied by Supreme Court (making opinion final).

      Thomas L. Jarrett and J. J. Neizer, for appellants.
    Robert H. Patton, for appellee.
   Mr. Justice Frost

delivered the opinion of the conrt.

This is an appeal from a decree of the Cass Connty Circuit Court dismissing upon a full hearing appellants ’ hill in equity brought against the appellee to reform cértain deeds. Appellee owned certain lands in Cass county situated in what is known as the Meredosia Lake Drainage & Levee District, and appellant, George R. Caldwell, owned some farm lands in Sangamon county. Appellant, William IT. Kizer, owned some real estate in the city of Springfield. On August •2, 1909, all of the appellants except Mary 0. Kizer, entered into a written contract with appellee whereby appellee agreed to convey to George R. Caldwell 110 acres of his land east of the levee, and the balance of his land, to William H. Kizer. Appellants, Gedrge R. and Nettie A. Caldwell, agreed to execute a mortgage of $2,500 to appellee on the lands to be conveyed to them, and appellants, William H. Kizer and Mary Kizer, his wife, were to execute a mortgage of $5,100 to appellee, on the lands to be conveyed to them. The contract contained the following provision: “All deeds to be drawn subject to the taxes and assessments of the year 1909.” On August 16, 1909, in pursuance of the agreement, appellee executed and delivered a deed to William H. and Mary Kizer, of the 110 acres described in the contract, and also executed and delivered to George R. Caldwell, a deed of 110 acres of land, as provided in the contract. The description of the lands in both deeds referred to them as lying east of the levee of the Meredosia Lake and Drainage District and each deed contained the following provisions: “Subject to the taxes for 1909 and all levee and drainage assessments which grantee assumes and agrees to pay.”

In the year 1903 the Meredosia Lake Drainage & Levee District was organized and benefits were assessed against the lands conveyed by appellee in the foregoing deeds of $4,695.45, as stated in appellants’ bill herein, payable in ten annual installments. Appellants claim they were ignorant of any levee or drainage assessments and that their understanding of the word “assessment,” as mentioned in the contract, had reference only to levee maintenance- assessments yearly made and they charge that the changed provision in the deeds whereby they assume all levee and drainage assessments, was made fraudulently by appellee acting in collusion with the attorney who drew the deeds; that they were deceived by appellee as to the true condition of the title to the lands they received and that they are entitled, either on the ground of fraud or mistake, to have the deeds reformed, conformably to the contract.

So far as this case is to be determined, upon the questions of fact we would hesitate to interfere with the decree of the circuit court unless it appears that the same is against the manifest weight of the evidence.

The testimony of E. D. Henry, an attorney employed by appellant Kizer, shows that he took appellee’s abstracts and examined them and gave an oral opinion to Mr. Kizer as to the title and told him the title was good with the exception that there were some drainage taxes against the land, the amount of which he could not tell. After the deeds were drawn and before they were delivered, Mr. Schnepp, an attorney at law of Springfield, who had been Mr. Kizer’s attorney, was called into Mr. Piper’s office, where delivery of the deeds took place, and consulted with reference to them. Mr. Schnepp was in a great hurry to get away, as he said, and did not give the matter very close attention and did not have time to read the contract. Mr. Schnepp testifies that his recollection was that Mr. Henry at the time stated the deeds contained the same provision as the contract. Mr. Henry testifies that in response to Mr. Schnepp’s question, whether the deeds were drawn in accordance with the terms of the contract, he told him they were, “with the exception of the clause concerning the drainage assessments, practically the same.”

It is admitted the abstracts of appellee’s lands showed original assessments for 1903 and 1905 and a petition for an additional assessment filed April 6, 1909. A. L. Hamilton, an attorney at law, who represented appellee and drew the contract, testifies that Kizer and Caldwell were to assume the levee assessments and that Mr. Moffet was to pay up all the levee taxes and assessments that were due up to the time the trade was made; that Mr. Caldwell took the contract to his brother, who was a lawyer, for examination, and that the clause in the contract as to taxes and assessments was inserted at Caldwell’s suggestion; that he discussed the details with Kizer with reference to the assessment or drainage levy, in his office; that Mr. Henry brought the deeds to Mr. Piper’s office shortly before noon; that they were not right for some reason and Caldwell and Kizer went to hunt up Mr. Schnepp to look over the deeds and that there was some talk about these assessments and Mr. Moffet said they could take the deeds as they were or not.

Mr. C. C. Courtney testifies that when appellee brought the deeds, they (referring to Caldwell and Kizer) objected to some of the levee matters written in the deeds. Appellee testifies the first time anything was mentioned in his presence concerning taxes or assessments was when the contract was drawn; that Caldwell and Kizer were to pay the taxes and levee assessments coming due after 1908 and that he was to pay all that fell due before 1909; that Mr. Caldwell did not wish to accept his deed without knowing what the levee tax and assessments were going to be and that Mr. Kizer went out and hunted up his attorney, Mr. Schnepp; that Mr. Schnepp asked Mr. Henry if these deeds were drawn in accordance with the contract and Mr. Henry said they were, with the exception of the wording of the assessments with regard to drainage ; that when it was near his train time Mr. Caldwell was still objecting to the assessments and he told him there was a part of the old levy that was not paid for; that there was maintenance tax to keep it up and that he had signed a contract to sell a strip of land off next the levee for its rebuilding and that if the strip was taken Caldwell and Kizer would receive pay for it, and that he, Moffet, said to them (referring to Kizer and Caldwell), that they could accept the deeds the way they were or let them alone. Caldwell and Kizer deny any knowledge of levee assessments or the petition and testify they supposed that by the word “assessment” reference was made solely to maintenance tax. In this they are corroborated by the wit-, ness Piper. Appellee insists that the word “assessment” as used in the contract includes all installments of levee assessments then actually levied against the land.

Without deciding this point we think the decree ought not to be disturbed. There was sufficient evidence to support the finding that appellants, Caldwell and Kizer, knew of the levee assessments when the deeds were delivered. The attorney employed by them knew of the existence of these assessments. The deeds were submitted to Caldwell and Kizer and they had •abundant time to examine them and call in additional counsel for that purpose. They knew the lands they were getting were in a drainage and levee district and the mortgages they gave to Mr. Moffet were made subject to drainage and levee assessments.

The learned chancellor who heard this case had a ranch better opportunity than we have of weighing the testimony and we can see no sufficient ground to disturb his findings. The decree will be affirmed.

Affirmed.


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    Christian G. Ryerson, Appellant, v. Luther M. Fairbanks et al., Appellees.
    Appeals and beeoes—when findings of chancellor not disturbed. Findings of fact by a chancellor will not be disturbed on review as against the weight of the evidence unless clearly and manifestly so.
    Bill in equity. Appeal from the Circuit Court of Piatt county; the Hon. W. G-. Cochean, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 9, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Herrick & Herrick and Schneider & Schneider, for appellant.
    Le Forgee, Vail & Miller and Carl S. Reed, for appellees.
   Mr. Justice Frost

delivered the opinion of the court.

This is a suit in equity brought in the Piatt County Circuit Court by appellant, Christian G-. Ryerson, against Luther M. Fairbanks and the First National Bank of Mansfield, to cancel the assignment of thirty-five shares of stock of said bank executed by Ryerson to Fairbanks, and also to cancel a certain note for $3,500 given by Ryerson to Fairbanks. Appellee, the First National Bank of Mansfield, was organized in 1902, with a capital stock of $25,000. ' W. D. Fairbanks, brother of appellee, Lnther M. Fairbanks, was its president, and James C. Langley, a son in law of appellant, was its cashier. In October, 1905, Langley was discovered to be short in his accounts with the bank to the extent, as claimed by appellees, of nearly $70,000. Luther M. Fairbanks, who had no interest in the bank, after-wards came to its rescue with sufficient funds to meet the defalcation of Langley. Langley and his father turned over to the Fairbanks property to the extent of $36,000. On October 28, 1905, C. F. Mansfield, an attorney for Luther M. Fairbanks, went to the home of Ryerson, who resided about seven miles from Gibson City on a farm. Ryerson owned thirty-five shares of the bank stock. Mansfield took with him John Darst. At Gibson they requested A. L. Phillips, an attorney who was slightly acquainted with Ryerson, to go with them to see Ryerson, as neither Mansfield nor Darst was acquainted with Ryerson. Phillips introduced Mansfield and Darst to Ryerson, and as claimed by appellees, Mansfield made known to Ryerson Langley’s defalcation, and the intention of Luther M. Fairbanks to save the bank if those who could would help; that he, Mansfield, wanted Ryerson to help to the extent of $3,500, and turn over to Luther M. Fairbanks the thirty-five shares, and Fairbanks would guarantee to release Ryerson from all liability on account of his stock. Ryerson stated he did not have the money. Mansfield replied to appellant that if he would give his note for $3,500 due in one year, and assign his certificates of stock to L. M. Fairbanks, he would submit the matter to Fairbanks, and if Fairbanks did not give his consent to return the note and certificates. To this appellant finally agreed, and note and assignments were made and delivered to Mansfield, who then prepared a receipt and agreement in duplicate, which, he signed for Fairbanks as his attorney, as follows: •

“Mansfield, Illinois, October 28,1905.
Received from C. G. Ryerson one promissory note for thirty-five hundred dollars ($3,500.00) payable to L. M. Fairbanks or order dated October 28th, 1905, due October 28th, 1906, bearing five per cent interest per annum. The said C. G. Ryerson being a stockholder in the First National Bank of Mansfield, Illinois, the delivery of said note and the transfer of thirty-five shares of stock held by him of the capital stock of said bank shall relieve the said Ryerson from all and every liability on account of his being a stockholder in said bank and the deficiency therein caused by the defalcation of James C. Langley, Cashier of said bank, and I, L. M. Fairbanks by C. F. Mansfield, my attorney, guarantee in consideration of said note and its payment and the surrender and transfer of said stock to save said C. G. Ryerson from any further loss or liability on account of his being a stockholder as aforesaid.
L. M. Fairbanks,
By C. F. Mansfield, his attorney.”

Appellant claims that the consideration of the note and assignment of stock was that Langley was not to be prosecuted for his defalcations; that the note and stock were obtained by fraud and duress, and void; that Mansfield, as attorney for the bank, and Darst as one of its directors, stood in fiduciary relations to appellant, and were thereby bound not to misrepresent anything. The cause was referred to the master, who reported adversely to the contentions of appellant, and found that no fraud had been practiced on appellant in procuring the note and the transfer of the stock, and that no threats of a criminal prosecution of Langley were made at the time, and that appellant was not entitled to the relief prayed for. The Circuit Court sustained the master’s finding.

The proof of the allegations of fraud and duress and threats of criminal prosecution rested entirely upon the evidence of appellant, who was seventy-eight years of age at the time he testified, and of his daughter, aged thirty-three. In this they are met by the testimony of Darst, Mansfield and Phillips, who deny that any threats were made, or any fraudulent statements made by them to appellant. Prom their testimony it appears that the situation was fully developed and explained to appellant, and no statement was made by them to cause Ryerson to believe that Langley was not to be prosecuted, if he, Ryerson, complied with their request. Appellant, in his testimony, referring to the above agreement, says that he read some of it, and that Mansfield read it aloud, and after Phillips, Mansfield and Darst went away, some of the girls read it all, and that he thought he understood everything in it. With a full understanding of the transaction as set forth in the agreement, he afterwards, on November 2, went to G-ibson City, and received the satisfaction signed by Luther M. Fairbanks, and receipted for a copy. We think the evidence shows that Ryerson was not misled by any statements or actions or conduct of those acting on behalf of Luther M. Fairbanks.

Was appellant defrauded in the transaction? From the testimony of Luther M. Fairbanks, it appears that Langley’s shortage was between seventy-two and seventy-three thousand dollars, and that the Fairbanks furnished about $68,000 to meet this shortage. From a statement of the bank’s condition in August, 1905, produced by appellant, the capital stock, surplus and undivided profits amounted to $30,458.22, including in this the value of the banking house, etc., which was placed at $7,363.05. With a shortage of $72,000, it is quite evident that the capital stock was wiped out, and that each stockholder was liable for the full amount of his stock. No statement was made to the appellant according to his own testimony concerning the hank’s condition or his liability on account of his stock, or the value of his stock by appellees that was not true, and so on the ground of fraud, there can be no question but that the finding of the master and the decree of the court were right.

Upon the question of duress, we would not be warranted in disturbing the decree, unless it is against the weight of the evidence, which we do not find to be the case. Upon the contrary, we think the finding in this regard is fully sustained by the testimony of appellees ’ witnesses, and the inferences to be drawn from the actions and conduct of appellant. Admitting all the conclusions to be drawn from appellant’s testimony and that of his daughter, most favorably in his behalf, we do not think they establish legal duress.

Fnding no error in the decree, the same will be affirmed.

Affirmed.


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    E. F. Bergen et al., Appellees, v. Chicago & Alton Railroad Company, Appellant.
    Common caebibes—how question of assent to limitations of liability determined. Whether the terms of a special contract limiting the liability of the carrier are known by the consignor and assented to by him, is a question of fact for the jury.
    ' Appeal from the Circuit Court of Menard county; the Hon. Guy B. Williams, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 9, 1911.

      Charles Nusbatjm and Edward H. Golden, for appellant.
    Thomas P. Peer, for appellees.
   Mr. Justice Frost

delivered the opinion of the court.

This is an action brought by appellees to recover damages alleged to have occurred in the delay of the delivery of three separate shipments of live-stock, the first shipment being of cattle and hogs to Chicago, December 28, 1909, the second of hogs to Peoria, September 8, 1910, and the third, one of cattle and sheep to Chicago, September 13, 1910. Upon a trial by jury a verdict was returned for $500 and judgment entered from which judgment this appeal is taken. Appellant contends that as to the first shipment no unreasonable delay occurred; that the delay was to some extent caused by appellees and that the delivery was as prompt as the weather conditions would permit ; that as to the last two shipments, appellees had signed a shipping contract providing that no claim for damages by shipper should be allowed or sued for in any court, unless the claim was made in writing within five days from the time the stock was removed from cars, verified by affidavit and delivered to the proper parties, which it is admitted was not done. No defense is made by appellant as to the amount of damages claimed and shown to have accrued by reason of delay in the last two shipments or any claim that appellant had any defense thereto, except the failure to give the stipulated notices. The evidence discloses that the amount of damages suffered by appellees under the last two shipments equals the amount of the verdict, and we may therefore reasonably conclude that the jury found the issues for the defendant as to appellees ’ claim for damages under the shipment of December 28, 1909. We will first inquire as to the validity of appellant’s defense as to the last two shipments in virtue of the contracts signed by a member of appellees’ firm. Whatever may be the rule in other jurisdictions, it is well settled in this state that whether the terms of a special agreement limiting the liability by the common carrier are known by the consignor and assented to by him, is a question of fact for the jury. Wabash Railway Co. v. Thomas, 222 Ill. 337.

Did appellees have such knowledge limiting them as to the time of making claim? Appellee, Thomas H. Bergen, who signed the contracts, testified that he did not know the contents of the contracts and was not acquainted with the provisions thereof; that he never read them nor ones like them, nor had his attention ever been called to them; that he signed the contracts under protest, acting under advice received from his attorney some years previous. In that he is disputed by the agent of the company. Whether appellees had knowledge of the contract provisions in question and assented thereto was a question of fact, and the jury under proper instructions as to the necessity of assent on the part of appellees to the provisions of the shipping contracts found against appellant.

Wé do not think the evidence or objections made to instructions, require us to disturb the judgment herein and the same will be affirmed.

Affirmed.


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    Charles Shipley, Plaintiff in Error, v. Chicago & Alton Railroad Company, Defendant in Error.
    1. Master and servant—when doctrine of assumed rislc applies. Where a servant knowing the existence of danger unnecessarily takes the risk arising therefrom the doctrine of assumed risk bars a recovery for an injury resulting.
    2. Contributory negligence—disobedience of orders. If a servant deliberately undertakes to do work in a particular way contrary to explicit orders and is injured as a result of a danger known to him, he is guilty of such negligence as will bar a recovery.
    3. Contributory negligence—when notice of danger presumed. Where the danger is obvious to a person of ordinary intelligence the law will charge him with knowledge of it. Where a person is old enough to comprehend a danger, and is familiar with the place and the location, his duty to exercise ordinary prudence and care would charge him with notice of it.
    ■ Action in case for personal injuries. Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 9, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    De Mange, Gillespie & De Mange, for plaintiff in error.
    Bracken & Young, for defendants in error; Silas H. Strawn, of counsel.
   Mr. Justice Frost

delivered the opinion of the court.

This is a suit brought by plaintiff in error, Charles Shipley, against the Chicago & Alton Railroad Company, defendant in error, to recover damages for an injury sustained by plaintiff while employed by defendant in and about a roundhouse of defendant in its Bloomington yards. At the close of plaintiff’s evidence, the court, on motion of defendant’s counsel, gave a peremptory instruction to find defendant not guilty. Verdict and judgment were then entered against plaintiff, and lie brings the case here on error.

At the time of his injury, plaintiff was in charge of a small engine, backing a certain tender or tank through the south arch of the roundhouse, to be placed on the turntable in the center, and then placed in a stall. Plaintiff had had some ten years’ experience as a brakeman and as a switchman in the yard, during which time he had worked about the roundhouse many times, and had been at this last employment about twenty-five days before his injury. Plaintiff, before entering upon his last employment, had been instructed by his superior never to enter the south arch until he had first stopped his engine outside the archway, and ascertained by actual inspection that the turntable was properly manned, aligned and locked. It required two men to properly operate and align the turntable track with the track in use. On the occasion of the injury, plaintiff was riding on a tank about nine feet wide and ten feet high, propelled by the engine. As he says, “The first time I went down I stopped outside the wall and went into the house to see about getting the table lined up with the track I was on. I was told to get out to let out another engine. I went out and afterwards backed down to the roundhouse on the same track. I expected to find the turntable lined because the engine had just gone out. Noticed the man was trying to line the table. He was see-sawing it back and forth. I noticed the track was not lined up wñen I first entered the outside arch. I signalled the engineer to stop, and as I did not feel it stop, I turned my head and hollered, and I caught my shoulder between the tank and arch wall, and I was rolled like you would roll a lead pencil in your hand. ’ ’ The west wall of the south or outgoing archway was about four feet from the west rail toward the north. The inner or north end of the archway was abont two feet and eleven inches from the track at the point where plaintiff was injured. Plaintiff had worked about the roundhouse sufficiently to know the distance between the west wall and the west rail of the track, and it was his duty to instruct the engineer to stop at the south arch to ascertain if the turntable track was aligned before entering it, and he knew, as he says, that as he first attempted to enter there was but one man at the turntable, and that it required two men to work it. He entered the south arch without paying any particular attention to find out the condition of the turntable, because, as he says, he did not think it was necessary, as he supposed every minute the man would have the table aligned. Prom the point where he stood on the tank, if he had looked, he could have seen whether or not the turntable was alighted, before he entered the south arch, and could then have signalled the engineer to stop. With his knowledge of the conditions surrounding him, particularly the proximity of the wall of the roundhouse to the outgoing track as it approached the north end of the archway, if he chose to ride on the steps of the tender in passing to the turntable, he assumed the risk of injury coming from contact with the wall, or if not a question of assumed risk, if he chose to disobey instructions and deliberately entered the south arch without knowing whether the turntable was aligned, knowing there was not sufficient men to properly operate it, and when the table was in full view at the entrance, and ride on the tender in such a manner as to inevitably incur injury as he approached the north entrance, he was, in our opinion, guilty of such negligence as should bar a recovery. Had he ascertained, as he should have, before he entered the south arch, that the table was not turned, it was his duty to instruct the engineer not to proceed, and then it would not have been necessary to signal the -engineer to stop, and the' injury would not have occurred.

"Where the danger is obvious to a person of ordinary intelligence the law will charge him with knowledge of it. Where a person is old enough to comprehend a danger, and is familiar with the place and the location, his duty to exercise ordinary prudence and care would charge him with notice of it. L. E. & W. Ry. Co. v. Wilson, 189 Ill. 89.

The risk of injury from being caught between the wall and tender we think was one assumed by the plaintiff, and his injury was due to his negligence in not ascertaining the condition of the turntable before entering the south arch.

For these reasons the judgment of the circuit court will be affirmed.

Affirmed.


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    Della Kornfeld, Appellee, v. Jones & Adams Coal Company, Appellant.

      Verdicts—luhen set aside as against the evidenceA verdict will be set aside on review where it is clearly and manifestly against the weight of the evidence.
    Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirlet, Judge, presiding. Heard in this court at the May term, 1911.
    Reversed and remanded.
    Opinion filed October 9, 1911.
    Brown, Wheeler, Brown & Hay and John T. Creighton, for appellant.

      Andrus & Trutter and Stevens & Herndon, for appellee.
   Mr. Justice Frost

delivered the opinion of the court.

This is an appeal from a judgment for $2,500 damages obtained by Della Kornfeld for the death of her husband, Peter C. Kornfeld, in appellant’s coal mine March 1, 1910. The declaration alleges in the first count that the roof of 1st B entry in the mine was not safe and defendant disregarded its statutory duty properly to display a danger signal; second, that the defendant wilfully disregarded its duty in permitting Peter Kornfeld to enter and work in said mine, not under the direction of the mine manager. Peter Kornfeld was a driver in defendant’s mine at the time of the accident in said B entry, and was then engaged in hauling an empty car upon a track in that entry toward the inside of the mine, and when he was passing somewhere between rooms 17 and 18, perhaps within 8 or 10 feet of the north side of the neck of room 18, going down a two or three per cent grade at a fairly rapid rate of speed, sitting on the right hand front corner of his car, preceded by another driver with a car, his car jumped to the rib side of the entry, knocked out a prop which was supporting one corner of a panel of timbering and let down upon himself the timber and rock supported thereby, and his head was pinioned upon the side of his car by timber, upon which lay a- great slab of slate, weighing a ton or more. Kornfeld died there a few minutes thereafter. There was a great quantity of slate at the place of the accident, and many timbers had been displaced. On the rib side, the fall was so great that the oar was covered and the space blocked so that one could not get through there nor see in or under the car on that side. On the room side, one could pass; the front wheels were off the track toward the rib side of the entry, and the car was not off the track on the room side. The prop on the rib side was the one that was knocked down. All but one of the witnesses testified that it was impossible to examine the wheels and track on account of the slate around the car. The track and car are shown to have been in good condition. One witness for appellee testified, “there was a difference,” meaning a piece of slate, on the rail on the room side between the front and back wheels, and that the front wheels were off toward the rib side. With the'exception of this witness, all the witnesses agreed that it was impossible to tell what caused the accident because of the great amount of debris that had fallen upon and around the car. State Mine Inspector Weeks, who inspected the place, stated it was impossible for him to tell. Many causes could have produced the accident, such as slate falling from the roof between the lagging, or from the rib or side, coal falling from the rib or side or from a preceding car or any substance kicked on the track by the mule running along the side, or the car may have jumped the track from no apparent cause. First entry B was not considered a good entry but it was timbered, lagged and double lagged between Booms 16 and 20 with lagging 6 to 18 inches apart, many of them lengthwise of the entry and with double lagging running crosswise over that. It was timbered in the customary way and the proof shows it was sufficiently and properly timbered. Yoyzey, the mine examiner, testified that he examined the entry that morning, considered it safe, and so reported it. The testimony of the expert witnesses satisfactorily shows that a car, derailed by an obstruction, will jump the track towards the side of the obstruction. One witness for appellee testified that slate fell through the lagging that morning, but this is against the greater weight of the evidence. There was no danger signal in that entry that morning. The mine manager testified he did not see any necessity for putting a danger signal there as the mine examiner had reported it safe. The great preponderance of the evidence shows that no slate had fallen that morning between rooms 16 and 18, and there had been none on the track or floor on the morning of the accident, or for.some time previous thereto, that no slate had fallen since the place had been timbered up after a big fall occurred several months previous to the accident, and that the timbering and roof between rooms 17 and 18 were in reasonably safe condition. In such a state of the proof, appellee should not recover under the first count of her declaration.

As to the second count, is appellant guilty of wilfully permitting Kornfeld to enter the mine to work, not under the direction of the mine manager ? The examiner had made an examination and reported to the manager the safety of the entry, and there is no proof in the record to show that Davis, the manager, knew the entry was not safe or ought to have known it. The evidence fails to sustain the contention of the plaintiff under the first or second count of her declaration, and for that reason the judgment should be reversed, and the cause remanded for a new trial.

Reversed and remanded.