text:
    August Reichert, M. T. Bagby and W. A. Schwartz, Appellants, v. Mannon Bankson, Appellee.
    1. Mortgages, § 610

      —when purchaser may not recover rent from, tenant of mortgagee. A purchaser at a mortgage foreclosure sale of premises under a mortgage executed prior to a lease by the mortgagor and who has received a deed, is not entitled to recover rent from a tenant who has not attorned to him where he has served a demand in writing upon the tenant to surrender possession of the premises after receiving the deed, as required by the Landlord and Tenant Act, sec. 1 (J. & A. U 7039).
    2. Mortgages, § 608*—when purchaser at foreclosure sale may eject tenant of mortgagor. A purchaser at a mortgage foreclosure sale has the right to eject any tenant placed in possession of such premises by the mortgagor subsequent to the making of the mortgage who might seek to hold over after the period of the equity of redemption.
    3. Landlord and tenant, § 15*—when relation does not exist. The relation of landlord and tenant does not exist between the purchaser at a mortgage foreclosure sale who has received a deed and a tenant of the mortgagor under a lease subsequent to the mortgage where such tenant has not attorned to the mortgagee, and it is immaterial that such purchaser has demanded rent of such tenant.
    Appeal from the Circuit Court of Pulaski county; the Hon. Benjamin W. Pope, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed,
    Opinion filed April 17, 1916.
    Wall & Martin, for appellants.
    C. S. Miller and Charles L. Rice, for appellee.

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

   Mr. Justice Boggs

delivered the opinion of the court.

This is an action brought by appellants against appellee before a justice of the peace, for the recovery of certain rents. The trial before the justice resulted in a judgment in favor of appellee, whereupon an appeal was taken to the Circuit Court of Pulaski county where the cause was tried de novo by the court without a jury. Judgment was rendered in favor of appellee, from which judgment this appeal is prosecuted.

On December 17, 1910, Abner O. Bankson, father of appellee, with his wife, executed a mortgage to H. M. Britt, August Reichert, W. O. Smoot, O. E. Curt, M. T. Bagby, Charles H. Brown and William Schwartz upon two hundred acres of land in Pulaski county to secure the payment of a note for $5,000. Thereafter, said Britt became the sole owner of said note and mortgage and after the same fell due, brought suit to foreclose. A decree of foreclosure was rendered at the January term, 1913, of said court. The premises were sold under said decree to appellant August Reichert, to whom was issued a certificate of purchase. A one-third interest in this certificate was assigned to appellant M. T. Bagby, and another one-third interest was assigned to appellant W. A. Schwartz. The premises sold for $4,800, and a deficiency decree was awarded against said Abner C. Bankson for $1,429.13. The equity of redemption having expired on the 8th day of June, 1914, the special master on June 18,1914, deeded said premises to appellants. No question is raised as to the regularity of the above proceedings.

The possession of said premises during the period of the equity of redemption remained in said Abner C. Bankson and were rented by him to various tenants. Appellee, Hannon Bankson, rented forty acres of the premises for wheat, which was sowed in the fall of 1913. He was to pay one-third of the proceeds of the crop after taking out expenses of threshing and hauling to market, which said rent amounted to the sum of $190.29.

On June 19,1914, being the next day after receiving the master’s deed, appellants Schwartz and Reichert went to the home of Abner O. Bankson to inform the said Bankson that they had a deed and to see about the rent. It seems that appellants did not know at the time that the said Abner C. Bankson had rented said land to appellee. The wheat was afterwards threshed and when being hauled- to market, the appellant Schwartz went to appellee and demanded the rent. Appellee refused to give it to him, but said to him he would put it in the bank at Ullin and let the court say to whom it belonged. Appellee, thereafter, on the advice of counsel and.before the beginning of this suit, paid said rent to his father, Abner O. Bankson, the said mortgagor. Under the contract that Hannon Bankson had with his father, for the payment of the rent, the same was due when the wheat was sold and the expenses taken out. There is practically no controversy as to the facts 'in this case, but only as to the law applicable thereto. Appellants presented four propositions of law to the trial court which they contend should have been held, but which were refused.

The sole question to be determined in this case under the propositions of law passed upon by the trial court is whether the purchaser of premises under a foreclosure sale and who has received a deed, on the expiration of the period of redemption, has a right of action against a tenant in possession of said premises under a lease from the mortgagor made subsequent to the execution of the mortgage foreclosed, where no demand for possession of said premises has been made by such purchaser after receiving said deed, and where said tenant has not attorned to said purchaser as his tenant.

The trial court held on the hearing of said cause that the purchaser of the premises under the conditions above named had no right of action for rent against said tenant, and we are inclined to the opinion that the holding of the trial court was correct, and that the appellants in this case were not entitled to recover from the appellee for the proceeds of the rent wheat in question. Tiffany in his work on Landlord and Tenant, at page 876, in discussing this question says: “If the interest of the landlord is sold under a judgment, mortgage or other lien, which is subsequent to the lease, the purchaser becomes the landlord in the former owner’s place, since the reversion passes by the sale. In such case the purchaser takes only what the lessor has, that is, his estate in reversion, and the rights of the tenant under the outstanding lease remain such as they would be in the case of a voluntary transfer of the reversion. If, on the other hand, the premises are sold under a judgment, mortgage or other lien prior to the lease, the purchaser comes in by title paramount to the lease, and he is entitled to possession as against the tenant thereunder. And as the tenant under a lease has no rights in the land as against the purchaser under a prior incumbrance, so such purchaser has, apart from statute, no rights as landlord against such tenant, unless the latter accepts a new lease from the purchaser, or, which is the same thing, attorns to him. The purchaser’s title dates back to the date of the lien under which he claims, and he is in the same position towards the tenant under the lease as that in which one to whom the owner of land conveys the absolute title would be towards a tenant under a lease which such owner might make after thus divesting himself of the title, that is, he is an absolute stranger towards such tenant. The enforcement of the lien divests all intermediate estates and interests to the same extent as would the enforcement of a condition subsequent at common law. The courts occasionally lose sight of the above distinction between a sale under a prior and one under a subsequent lien, speaking of a purchaser under a prior lien as being entitled to the rent under the lease. It may be remarked that if the purchaser at the sale made to enforce such prior lien could be regarded as entitled to the rights of a reversioner as against the tenant, he would necessarily enjoy them subject to the same limitations as the lessor himself, and the result would be that the lien could be rendered practically valueless by the making of a long lease at an exceedingly low rent.”

This subject is also discussed in 24 Cyc. at page 1174. .The language being as follows: “If the lease is prior to the mortgage, the mortgagee is an assignee of the reversion and in that character entitled to all the rents, excepting only such as may have been paid by the lessee before notice of the assignment; but when the lease is subsequent to the mortgage, there is no privity between the mortgagee and the lessee, and no right in him to demand the rent reserved by the lease. ’ ’

In the case of Reed v. Bartlett, reported in the 9th Ill. App. at page 267, the court discussing this question on page 270 says: “When they, as owners of the equity of redemption, leased the premises to the appellee, his estate for years was carved out of the equity of redemption and .not out of the fee. The estate granted to the appellee, and the reversion in them constituted the entire .equity of redemption, and when the mortgage was foreclosed the equity of redemption became extinguished and the reversion and the leasehold estate fell with it. The purchaser at the mortgage sale became the owner of the premises in fee; and could have treated the occupant as a trespasser and recovered the possession by ejectment without notice, or in forcible detainer under the statute, and when evicted under the paramount titlp of the mortgagee neither the mortgagor or his lessee would be entitled to the emblements. * * * But the purchaser cannot distrain for rent, or bring an action to recover it, unless the tenant has attorned to him, as the relation of landlord and tenant does not exist between them.”

In the case of Bartlett v. Hitchcock, reported in the 10th Ill. App. at page 87, the court on page 89 discussing this question says: “But neither in fact or in law does the purchaser at a mortgage sale become the assignee of the reversion or of the term, where the lease out of which these estates arise, is made after the execution of the mortgage. This title acquired at the sale relates back to the execution of the mortgage, and he takes the title as then existing in the mortgagor, divested of sales, liens or leases made by the mortgagor or those claiming under him. The mortgagor does not become the tenant of the mortgagee (Carroll v. Ballance, 26 Ill. 9), and the relation of landlord and tenant does not exist between the mortgagor and a purchaser at the sale. Hence tenants under leases made subsequent to the mortgage, may be treated as trespassers by the mortgagee or the purchasers, and ejected without notice. * * * And the single act of the mortgagee ' or the purchaser in demanding rent of such tenant, will not create the relation of landlord and tenant when such demand has not been acted upon, so as to enable such mortgagee or purchaser to recover rent eo nomine.” To the same effect is Taylor on Landlord and Tenant (4th Ed.), sec. 126; 1 Jones on Mortgages, sec. 777.

We are inclined to the opinion that, a purchaser at a mortgage foreclosure has the right to eject any tenant placed in possession of said premises by the mortgagor subsequent to the making of the mortgage who might seek to hold over after the period of the equity of redemption. The purchaser would have the right to proceed under section 1 of the Landlord and Tenant Act (J. & A. jf 7039), and serve such tenant with a demand in writing and thereby place himself in a position to recover rent for the use and occupation of the premises. No such demand, however, was served in this case and no attempt was made by appellants to comply with this section of the statute.

We are therefore of the opinion that under the law the transfer of the title to this property from the mortgagor to the purchaser at the foreclosure sale does not create a privity of estate between the tenant under the lease made subsequent to the mortgage, and since there was no privity of contract between appellants and appellee whereby appellee had agreed or obligated himself to pay rent for these premises, and since appellants have not complied with section 1 of the Landlord and Tenants Statute, there can, therefore, be no recovery in this case. The judgment of the trial court is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Boggs

license: Public Domain

text:
    Julius Born, Plaintiff in Error, v. Theodore Schrieber, Defendant in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal Aim error, § 1410

      —when verdict not disturbed because of insufficiency of evidence. A verdict will not he disturbed on appeal as not supported by the evidence unless it is against the manifest weight of evidence.
    Error to the Circuit Court of Randolph county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Action in trespass, by Julius Born, plaintiff; against Theodore Schreiber, defendant, for an assault and battery committed by defendant upon plaintiff. From a judgment for plaintiff, defendant brings error.
    Simpson & Adami and J. F. Sanford, for plaintiff in error.
    Ralph E. 'Sprigg, for defendant in error.

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

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

   Mr. Justice Boggs

delivered the opinion of the court.

2. Appeal and error, § 1414 —when question whether witness sworn not reviewed. The question whether or not a witness has been sworn is so peculiarly within the observation of the trial judge that his rulings thereon will not be disturbed on appeal:

3. New Trial, § 5*-—when not granted for neglect to cause witness to take oath. A new trial will not be granted upon the ground that a witness was not sworn when his testimony did not relate to any vital issue in the case.

4. Instructions, § 154*—when modification proper. The modification of instructions is not objectionable where such modification is more in matter of form and the meaning of such instructions remains substantially as before such modification.

5. Instructions, § 126*—when abstract instructions properly refused. It is not error to refuse instructions which are abstract in character.

6. Instructions, § 151*—when requested instruction covered by other instructions properly refused. A requested instruction covered in the main charge is properly refused.

7. Instructions, § 120*—when requested instruction inapplicable to evidence properly refused. A requested instruction correct in form, but inapplicable to the evidence in the case, is properly refused.

8. Instructions, § 19*—when argumentative instruction properly refused. A requested instruction which is argumentative in form and relates to matters foreign to the issues is properly refused.


text:
    George C. Stullken, Administrator of the Estate of Herman Kernke, Deceased, Appellee, v. J. Morgan Sims, Appellant.
    1. Coroners, § 5*—when not entitled to burial allowance. The provision in Rev. St., ch. 53, sec. 26 (J. & A. 5627), for the payment to the coroner of the sum of $12 for “burial expenses” of a body over which an inquest has been held, is an allowance to the coroner to be expended by him in giving a body a decent burial, and, unless such expenditures are made for such purpose, he is not entitled to any part thereof.
    2. Statutes,'§ 198*—how words in statute are to be interpreted.
      Words of a statute are to be interpreted according to their common and popular acceptation and import.
    3. Statutes, § 205

      —how words of known legal import presumed to have been used. Words of a known legal import in a statute are presumed to have been used by the legislature in their known sense.
    Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed,
    Opinion filed April 17, 1916.
    Williamson, Burroughs & Ryder, for appellant.
    Gr. W. Crossman, for appellee.

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

   Mr. Justice Boggs

delivered the opinion of the court.

One Herman Kernke died intestate at a hotel in the city of Edwardsville, Illinois, on or about June 11, 1913, under such circumstances that a coroner’s inquest was necessary. The defendant in this cause, as coroner of Madison county, Illinois, held an inquest over the body of said Kernke and took possession of the sum of $86.55 cash, found on the body.

Upon learning of the death of said Kernke, said defendant notified a firm of undertakers—Marks, Weber & Company—who took charge of the body at the place where death occurred, prepared it for burial and conducted the funeral. In doing this said undertakers performed all the services and did all the labor and supplied the casket and other things necessary to bury the body. A claim for such funeral services and expenses was allowed and has been paid by the estate of said deceased. Appellant did not perform any labor or render any service in connection with the removal and burial of said body, other than deliver the same to said undertakers, and did not lay out, expend or cause to be expended any money, labor or expense, of any kind or character, in connection with the removal and actual physical burial of the body of the decedent and did not superintend the burial.

Appellee in this suit at the time was the public administrator of Madison county and was duly appointed by the Probate Court administrator of the estate of said Kemke and brought this action in assumpsit, declaring on the common counts, to recover the said sum of money in the hands of appellant as coroner.

Appellant by proper pleas made a tender of $63.55 of the amount held by him and set up his claim to retain the balance, $23, as fees of his office, payable out of said estate, viz., for holding inquest, $10; for impaneling jury, $1, and for burial expenses, $12.

A jury was waived and the cause was tried by the court upon a written stipulation of facts and propositions of law submitted. The court found in favor of appellant as to the item of $10 for holding the inquest and the item of $1 for impaneling the jury, and disallowed the item of $12 for burial expenses and rendered judgment for $74.55, from which judgment this appeal is prosecuted.

The sole question involved is whether the trial court erred in disallowing said item of $12 claimed by appellant as being due to him as coroner. The determination of this question involves the construction of section 26 of chapter 53 of Hurd’s Revised Statutes (J. & A. j[ 5627). Said section, so far as here involved, being as follows: ‘ ‘ For holding an inquest over a dead body, when required by law, in counties of first and second class, ten dollars; in counties of third class, five dollars. For summoning the jury, one dollar, in all counties. For burial expenses, in counties of first class, fifteen dollars; in counties of second class, twelve dollars; in counties of third class, ten dollars. All of which fees shall be certified by the court, and paid out of the treasury when the same cannot be collected out of the estate of the deceased.”

It is insisted by appellant that the provision of said section in reference to burial expenses should be construed as a fee belonging to the coroner by virtue of his office for causing the body of a deceased person, over whom he has held an inquest, to be decently buried, where the body has not been called for and delivered to the friends of the deceased, and that this fee is owing, not for anything done or labor expended by said coroner, but simply as a fee for causing said body to be decently buried by some undertaker.

On the other hand, appellee contends that this provision of said statute with reference to burial expenses is an allowance to the coroner to be expended by him in giving the body of the deceased person a decent burial, and that unless such expenditures were made for said purpose, said coroner would not be entitled to the whole or any part thereof.

We are of the opinion that the latter construction of said statute is the proper one, for to hold otherwise would be to give to the word “expenses” a meaning entirely different from the meaning usually attached to it. Words of a statute are to be interpreted according to their common and popular acceptation and import, and words of a known legal import are to be considered as having been used by the Legislature in that known sense. Steere v. Brownell, 124 Ill. 27.

It is insisted by appellant that said section 26, chapter 53 (J. & A. 5627) above referred to should be construed in connection with sections 20 and 21 of chapter 31 of Hurd’s Statutes (J-. & A. 2411, 2412), being the. chapter on coroners. We have examined the sections referred to, but find nothing in them requiring a different construction to be given to the term “burial expenses ’ ’ than the one we have given.

Finding no error in the record the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Carson Cobine, Appellant, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company and Chicago, Indianapolis & St. Louis Short Line Railway Company, Appellees.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. Loins Bebnbeuter, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Action by Carson Cobine, plaintiff, against Cleveland, Cincinnati, Chicago & St. Louis Railway Company and Chicago, Indianapolis & St. Louis Short Line Railway Company, defendants, for damages for injury to crops from overflow alleged to be caused by the construction of a dam across a stream which flowed through plaintiff’s land. From a judgment for defendants, plaintiff appeals.
    Plaintiff owned eighty acres of land lying one-half mile north and south and a quarter of a mile east and west. The south end of said lands was something over 2,000 feet north of the dam in question. This water course entered plaintiff’s land on the north line and flowed through said eighty acres so owned by plaintiff the long way, and emptied onto a tract of land lying immediately south of plaintiff’s land, owned or in the possession of defendants. The stream averaged about 6 or 7 feet in depth, and was about 20 feet in width from bank to bank. The dam was constructed during the latter part of the year 1910 and the early part of the year 1911. The center portion of the dam was called the ‘ ‘ Spillway, ’ ’ was made of concrete, and was 69.7 feet wide. From the concrete spillway to the hill on each side the dam was built of earth, making the entire dam reach from one hill to the other. Defendants thus formed a large reservoir north of the dam in which to collect and retain water to be used in the operation of their road. The top of the concrete spillway was on the same level as the bottom of the branch at plaintiff’s south line.
    Abstract of the Decision.
    I. Waters and water courses, § 29

      —when evidence sufficient to show that erection of dam not cause of overflow. In an action by an upper riparian owner against lower riparian owners for damages for injury to crops from overflow alleged to be due to the construction of a dam, where the evidence was conflicting, evidence held sufficient to sustain a fiúding that the dam did not cause the water to back on plaintiff’s land, and that it did not obstruct the natural flow of water through the same.

      The country through which this stream flowed was hilly, and the water at times of heavy rains would gather rapidly in the stream, and the stream would overflow its banks. On the land owned by plaintiff there was bottom land along the stream on each side thereof, composing about twenty-five or thirty acres of said eighty. This natural water course had its source something like two miles north of the dam. The bottom of the stream at the south line of plaintiff’s land was approximately 7 feet lower than the bottom of the stream at the north line of his said land.
    South of the line of plaintiff’s land there was bottom land, and the fall was rapid, and during times of heavy rains the water would spread out over these bottom lands after leaving plaintiff’s premises.
    The damages claimed by plaintiff were to certain stacks of hay on said bottom land owned by him and for damage done to the corn grown on said premises for the year 1910.
    H. B. Eatost and J. F. Beck, for appellant'.
    D. B. Keeps, for appellees; L. J. Hackhey, of counsel.

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

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

   Mr. Justice Boggs

delivered the opinion of the court.

2. Appeal and error, § 1241 —when failure to instruct as to right to nominal damages invited error. A plaintiff who only tenders an instruction covering the measure of damages, requiring the jury to award only such damages as they may find from the evidence, is not in position to allege as error the failure of the court to instruct that he was entitled to nominal damages, if the jury should find that he had not suffered actual damages.

3. Appeal and error, § 1748*—when judgment should tie affirmed on appeal. A judgment should be affirmed where the only issues are those of fact, and two juries have found against the appellant, and there are no substantial errors in the record.


text:
    Commissioners of Highways of the Town of Saline, Appellees, v. John Klaus, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Rehearing denied May 25, 1916.
    Statement of the Case.
    Proceedings by the Commissioners of Highways of the Town of Saline, plaintiffs, against John Klaus, defendant, to ascertain the amount of damages to which defendant was entitled, due to the vacation of a road. From a judgment in favor of plaintiffs for costs, defendant appeals.
    A former appeal on the first trial was taken to the Appellate Court by defendant from a directed verdict and judgment against him for costs. The judgment of the trial court was reversed and the cause remanded for a new trial. See Highway Com’rs Saline Tp. v. Klaus, 186 Ill. App. 431.
    Defendant owned in all about one hundred and twenty acres of land, the seventy acres which were crossed at the extreme northeast corner by the road, and about fifty acres in addition thereto, adjoining said lands on the west. A public highway ran south from Saline through defendant’s land so that all of the land of defendant joined this public highway and access thereto was obtainable therefrom. Defendant contended, however, that he could not reach the east side of his said farm from the highway running south from Saline on account of a certain creek that ran in a northerly and southerly direction across his said land lying on the east side of said public highway. Said creek he insisted could not be crossed with teams or loads, and at times could not be crossed by his stock, and that his only means of access to his said lands had been cut off when said road was vacated. Defendant’s land lying east of said public highway running south from Saline was considerably broken, and was largely covered with timber and was used by him as a pasture during all the time that he owned it, being some six or seven years, with the exception of the year 1914. Defendant testified that in 1914 he cropped about twenty acres of the same but did not get any considerable income therefrom on account of the bugs destroying said crops. The evidence was conflicting as to whether the creek could be crossed.
    Burton & Burton, for appellant.
    J. P. Streuber and D. H. Mudge, for appellee.

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

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

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

   Mr. Justice Boggs

delivered the opinion of the court.

Abstract of the Decision.

1. Judgment, g 517 —when judgment on prior appeal not conclusive on question of damages for vacation of road. The decision of the court on a prior appeal in proceedings by highway commissioners to determine the amount of damages due a property owner for the vacation of a road, in reversing a judgment for plaintiffs and remanding the case for new trial, is not conclusive on the right of defendant to damages where, on the former trial, no evidence was offered by plaintiffs to meet or contradict the evidence of defendant that his lands were damaged by reason of the vacation of such road, and it was stipulated by the parties on the former appeal that the evidence in the record tended to show that defendant’s lands were damaged.

2. Roads and bridges, § 143*—when evidence sufficient to sustain finding that property owner not damaged by vacation of road. In proceedings by highway commissioners against a property owner to determine damages to his land as the result of the vacation of a road, where the evidence was conflicting, evidence held sufficient to sustain a finding that the land of defendant was not damaged as a result of the vacation of the road.

3. Appeal and error, § 1466*—when admission of evidence as to establishment of new road after vacation of road in proceedings to determine damages harmless error. In proceedings by town highway commissioners to determine the amount of damages to which a property owner was entitled, due to the vacation of a road crossing the northeastern part of his land, and in which it appeared that another road crossed defendant’s land in a northerly and southerly direction, defendant contending that the vacation of the road deprived him of access to the portion of his farm east of the north and south highway, held that the admission in evidence of the record of the laying out of a road running north and south on the east side of his land, which was laid out subsequent"' to the vacation of the road in question, was not prejudicial error where all the witnesses for both parties testified relative to the damages to defendant’s land by vacation of the road without any reference to the new road.

4. Appeal and error, § 1691*—when error in admission of evidence waived. Any error in the admission of evidence as to the laying out of a new road along defendant’s land Subsequent to the vacation of a road, in proceedings by highway commissioners to determine the damages to which a property owner is entitled owing to the vacation of the road, is waived where the defendant himself offers evidence tending to prove the damages to his land from the vacation of the road in question at the time the new road was opened up.

5. Appeal and error, § 1691 —when error in admission of evidence waived. The defendant in proceedings by highway commissioners against a property owner to determine the damages to which the latter is entitled owing to the vacation of a road crossing his farm waives any error in the admission of evidence as to the laying out of a new road subsequent to the vacation of the road in question, where he tenders an instruction to the effect that the jury have the right to take into consideration the effect of the new road in mitigation of damages.

6. Roads and bridges, § 143*—when instruction that party to proceedings to vacate road not entitled to damages because party proper. In proceedings by highway commissioners to determine the damages due to a property owner because of the vacation of a road, an instruction that defendant was not entitled to damages merely on account of the fact that he had been made a party to the proceedings to vacate the road, held proper.

7. Roads and bridges, § 143*—when party to proceedings to vacate road entitled to damages. A party to proceedings to vacate a road is not entitled to damages simply because he is a party, and he is not entitled to damages unless the benefits are less than the damages.

8. Roads and bridges, § 43*—when damages follow as matter of course in proceedings to condemn lands for road purposes. Damages follow as a matter of course in proceedings to condemn lands for road purposes where such lands are actually taken.

9. Roads and bridges, § 143*—when unnecessary to ascertain damages before vacating road. It is unnecessary that damages to land as a result of the vacation of a road be first ascertained before the road is vacated.

10. Roads and bridges, § 143*—how damages for vacation of road ascertained. Damages for the vacation of a road are damages that are to be ascertained as for lands not taken.

11. Appeal and error, § 1637*—when error in giving of instruction cured. In proceedings by highway commissioners to determine damages due a property owner because of the vacation of a road, any error in giving an instruction for plaintiffs that damages on account of the location of a new road subsequent to the vacation of the road in question should not be considered is cured where defendant tenders an instruction directly calling the jury’s attention to the road and informing them that they could take the matter of the new road into consideration in mitigation of damages.

12. Roads and bridges, § 143*—when instruction that burden of proof on landowner to show damages in proceedings for vacation of road proper. In proceedings to vacate a road and to determine damages to which a property owner was entitled, an instruction that the defendant must prove the damages to his land by the greater weight or preponderance of evidence, held proper.

13. Roads and bridges, § 143 —when burden of proof on defendant in proceedings to vacate road to show damages to land. In proceedings by highway commissioners to vacate a road and to determine the compensation due a property owner, the burden of proof is on defendant to establish such damages.

14. Appeal and error, § 1637*—when giving of instruction on right to damages in proceedings to vacate road harmless error. In proceedings to vacate a road and to determine compensation due a property owner, any error in giving an instruction that if the jury found from the evidence that the vacation of the road in question did not deprive defendant from ingress and egress to a portion of his farm by means of a public road or highway then he would be entitled to no damages was harmless, although it appeared that a new highway was located along such portion of defendant’s land after the vacation of the road, where such instruction did not attempt to direct a verdict and the jury were fully instructed as to defendant’s theory of the case.

15. Appeal and error, § 1749*—when judgment not reversed on appeal. A judgment will not be reversed on appeal where the verdict does substantial justice and only minor errors intervene.


text:
    B. Riley Hauk, Appellee, v. Sue B. Louden and Mildred Louden, Executrices, Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Clinton county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Action on a claim by B. Biley Hank, plaintiff, against Sue B. Louden and Mildred Louden, executrices of the estate of Walter S. Louden, deceased, defendants, for cash advanced to deceased to buy stock under an alleged arrangement by which- plaintiff was to take the stock in his name and deceased to take up the stock and refund the purchase price by a certain date. From a judgment for plaintiff, defendants appeal.
    There were no written pleadings filed, but a claim in the following form:
    “Estate of Walter S. Louden, deceased, to B. Riley Hauk, Debtor. December 20, 1913, to cash advanced purchase 10 shares of capital stock of M. & O. Milk Company, said stock by agreement to be taken up in the name of claimant with the understanding and agreement that in consideration thereof the deceased would take up said stock and refund the purchase price on or before August 20, 1914.................. $1000.00
    “Interest on said sum at 5 per cent to date ................................... 18.62
    “Total............................... $1018.62”
    J. B. Vogelsang, a witness for plaintiff, had a claim for the same amount, based on the same facts involved in this case. The trial court heard the evidence in support of both of these claims at the same time. Plaintiff was the president of and stockholder in the B. Riley Hauk Supply Company, a corporation of St. Louis, Missouri, hereafter for convenience designated as the Supply Company, whose business was the handling of milk, milk products and dairy supplies. Vogelsang was secretary and treasurer and a stockholder in said company. Walter S. Louden, the deceased, was for many years prior to his death the president of a corporation known as the M. & O. Milk Company, of Waterloo, Illinois, hereinafter for convenience designated as the M. & O. Company, whose business was the buying and shipping of milk and dairy products.

      A contract was entered into on November 29, 1913, by which the Supply Company agreed to purchase of the M. & O. Milk Company 1000 cases of milk for a consideration of $3,000, which consideration was evidenced by sixteen notes aggregating said amount, and these notes were by the M. & O. Company indorsed and were negotiated at its bank for the purpose of raising funds to carry on its business, thereafter, the M. & O. Company becoming financially involved. Walter S. Louden, its president, undertook to reorganize the same, and found that before this could be done it would be necessary to provide for the existing indebtedness of said company, part of which indebtedness was the $3,000 worth of notes, which the M. & O. Company had received from the Supply Company, and had indorsed and negotiated through its bank.
    In order to rid the M. & O. Company from its obligation as indorser on the notes of the Supply Company, Walter' S.. Louden, its president, approached plaintiff and Vogelsang with the proposition that they purchase from the new company, which Louden was proposing to organize, $3,000 worth of its capital stock, and the proceeds of the capital stock to be used to take up these notes. Plaintiff and Vogelsang finally reached an agreement with Louden by which the M. & O. Company as reorganized was to issue to plaintiff and Vogelsang $1,500, respectively, of its capital stock, and the agreement was carried out and plaintiff and Vogelsang, as president and secretary of the Supply Company, called a meeting of said company and ratified the transaction as one made by the company, and at said meeting passed a resolution wherein it was recited that plaintiff and Vogelsang had agreed, in order to release the M. & O. Company of its obligation on the contract relating to the payment of the $3,000 in notes (being notes given by the Supply Company to the M. & O. Company and by it indorsed and negotiated), to take each $1,500 of preferred stock of the M. & O. Company, and reimburse the Supply Company for the payment of said notes when due. It was further provided in said resolution that plaintiff and Vogelsang had covenanted and agreed to give the Supply Company their personal notes due on or before one year for $1,500 each, and that by said transaction the M. & O. Company was released of all further obligation pertaining to the contract. After this meeting of the Supply Company on December 20, 1913, a letter was written by the Supply Company to the bank that held the notes of $3,000 indorsed by the M. & O. Company, which letter among other things contained the following:
    “We therefore advise you that under an arrangement made with W. S. Louden today, B. Riley Hauk, President of our Company and J. B. Vogelsang, Secretary and Treasurer of our Company, have mutually agreed to take $1500.00 of the preferred stock of the M. & O. Milk Company and in turn have made financial arrangements with the B. Riley Hauk Supply Company to take care of the above financial obligation, and the B. Riley Hauk Supply Company hereby agrees to pay these notes releasing the M. & O. Milk Company from any liability.”
    Upon receipt of said stock from the M. & O. Company, plaintiff and Vogelsang each executed to the Supply Company their individual note of $1,500 each and deposited, respectively, as collateral ten shares of the capital stock of said M. & O. Company, as reorganized, and under some arrangement with Louden he executed certain notes to the Supply Company aggregating $1,000, and five of the shares of stock issued to plaintiff and five of the shares of stock issued to Vogelsang were deposited as collateral with the note of Louden. The notes were paid by the Supply Company out of its own funds. >
    As to the conversation which took place between plaintiff and Vogelsang and Louden at the time Lou-den approached plaintiff and Vogelsang with the proposition that they should take $3,000 worth of stock of the M. & O. Company, in order that the same might be reorganized as above stated, plaintiff testified that Louden stated to him at said time: “ ‘We are going to increase the capital stock and reorganize down at Waterloo and make it a co-operative company and get the farmers interested in taking stock to the extent of $100,000.00.’ He says, ‘Before we can make that move there is an obligation’—I don’t know whether it was himself or whether it was the company—‘of $50,000 which had to be cleaned up.’ I says, ‘How is that going to be done?’ He says, ‘We want you to take stock in that company, at least the remainder of that amount of those notes.’ # * * He says, ‘Here is the plan. You take $2000.00 worth of stock—yourself and Vogelsang—and I will issue you also $1000.00 worth of stock, $500.00 to each, and make it $1500.00; and $1000.00 I will give you my personal note for, and put that stock up as collateral and I will assure you that if you will take and help me out in this transaction that I will dispose of that $2000.00 worth of stock. * * * I will take and dispose of your stock for you; in ninety days you will have your money back. ’ ”
    The testimony of Vogelsang was practically to the same effect as plaintiff’s with reference to the conversation and transaction had with Louden. Vogelsang testified that after the proposition made by Louden with reference to their taking stock, he said, “ ‘Walter, how soon will you clean us up then?’ He says, ‘I can’t promise you anything but you hold that stock temporarily until we get the reorganization completed and I will have plenty of money and will clean the matter up.’ I asked him how long that would take, and he said, ‘Probably sixty or ninety days.’ I says, ‘Why not give your notes for all of it?’ He says, ‘I couldn’t make my arrangements at the bank if we did.’ * * * He says, ‘Vogelsang, you will never regret this and you will be cleaned up before spring arrives.’ ” It was on the testimony of plaintiff and of the witness Vogelsang with reference to this conversation and transaction had with W. S. Louden that plaintiff based his claim for recovery in the case.
    The minutes of the special meeting of the board of directors of the Supply Company above referred to were to the effect that plaintiff and J. B. Vogelsang, as the only directors present, entered into a contract with the M. & O. Milk Company, issued certain promissory notes maturing on the 20th of February, March, April, June, July and August, amounting to $3,000, and for special consideration and advantages to the Supply Company, plaintiff and Vogelsang agreed, in order to release the M. & O. Company of its obligation, to take up the Supply Company notes for $3,000, as above stated; to take each $1,500 of preferred stock of the M. & O. Company and to reimburse the Supply Company for the payment of the above notes when due. There was nothing in the record to disclose whether plaintiff and Vogelsang constituted a quorum of the directors for the transaction of business of said company or as to whether the other directors of said company, if any, were notified of said meeting.
    The evidence of the bookkeeper for the Supply Company was to the effect that after the special meeting of the Supply Company, in which it was made to assume and pay the $3,000 indebtedness heretofore referred to, a charge was entered against the M. & O. Milk Company, J. D. Vogelsang and B. Riley Hank for $3,000. Said witness testified that this account appeared on a private ledger of said company, and showed that the account was carried against both Vogelsang and plaintiff, and that all sums received in the way of dividends or credits in connection with this transaction were credited to said account. After the death of Louden, $710.51 was paid on the claim probated against his estate by the Supply Company, and which amount so paid was applied on the joint indebtedness of plaintiff and Vogelsang, and the amount still owing by plaintiff and Vogelsang on this account as shown by the books of said company was $2,132.82.
    Abstract of the Decision.
    1. Sales, '§ 373

      —when evidence insufficient to establish contract for repurchase of corporate stocks. In an action by an officer of a corporation against the estate of a deceased officer of another corporation, which latter corporation failed to satisfy an indorsed note owed by the first corporation to the second corporation for supplies, where it appeared that such deceased officer, in order to improve the finances of his corporation and dispose of such indebtedness on the indorsed note, sold stock to plaintiff and another officer of the purchasing corporation, evidence held insufficient to establish an agreement by deceased to repurchase such stock.
    2. Estoppel, § 47*-—when stockholders of corporation estopped to question validity of record of meetings of directors. Stockholders of a corporation are estopped to dispute the record of a meeting of the directors made by them.
    3. Corporations, § 261*—when evidence sufficient to show joint and several liability of directors to corporation. In an action by an officer of a corporation against the estate of a deceased officer of another corporation, which latter corporation had failed to take up an indorsed note owed by the first corporation after payment by the second corporation to it, where it appeared that such deceased officer in order to improve the finances of his corporation, and to dispose of the indebtedness on the indorsed note, sold stock to plaintiff and another officer of the first corporation and that such first corporation paid for such stock out of its own funds, but such officers of the first corporation and deceased gave their individual notes to the first corporation, evidence held sufficient to show that such officers of the first corporation were jointly and severally liable to it for the amount so expended.

      Noleman & Smith, for appellants.
    Murray & Lager, for appellee.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topip anti g&ction number.

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

   Mr. Justice Boggs

delivered the opinion of the court.

4. Witnesses, § 74 —when officer of corporation incompetent witness in action by another officer. An officer and stockholder of a corporation who, with another officer, is jointly and severally liable for the repayment of money by the corporation for stock purchased by such officers, “is an incompetent witness in an action by such other officer to recover the purchase price of the stock from the estate of another person who agreed to take up such stock.

5. Corporations, § 261*—how officers may relieve themselves from individual liability on indebtedness to corporation. Officers of a corporation who deal with themselves as individuals have no right to relieve themselves as individuals from their liability on an indebtedness to the corporation except, upon full payment of their obligations.


text:
    John C. Hahn and Amanda L. Hahn, Appellants, v. U. W. Easton, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Marion county; the Hon. William B. Wright, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Bill by John O. Hahn and Amanda L. Hahn, complainants, against U. W. Easton, defendant, for the reformation of a deed and to enjoin defendant from prosecuting a suit in covenant to recover damages for an alleged breach of warranty in the deed. From a judgment for defendant, complainants appeal.
    E. D. Telford, for appellants.

      Abstract of the Decision.
    1. Reformation of instruments, § 12

      —when written instrument may be reformed on ground of mistake. In order to justify the reformation of a written instrument on the ground of mistake, it is necessary that the mistake should he a mutual one and should be proven by clear and convincing evidence.
    2. Reformation of instruments, § 47*—when evidence insufficient to warrant reformation of deed for mistake. On a bill to correct an alleged error of a scrivener in drafting a warranty deed by inserting the word “$4700” as the amount of the incumbrance instead of “$5400,” where the evidence was conflicting, and no mention of the incumbrance was made in the contract for exchange of properties, hut the scrivener testified that the provision relative-to incumbrances was inserted by him at the dictation of one of complainants and, as inserted, was correct, evidence held insufficient to warrant reformation of the deed on the ground of mistake.
    William A. Mills, for appellee.

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

   Mr. Justice Boggs

delivered the opinion of the court.


text:
    City of Mound City, Appellant, v. Hugh A. Mason, Appellee.
    1. Eminent domain, § 224*—when attorneys’ fees, costs and expenses taxable in favor of defendant. The proviso of Rev. St., ch. 47, sec. 10 (J. & A. j[ 5260), relative to the payment of costs, attorneys’ fees and expenses by a petitioner in eminent domain proceedings, applies only where the petition is voluntarily dismissed by the petitioner, or where the petitioner fails to pay the compensation within the time fixed by the statute and does not apply where, after a preliminary hearing, the court on motion of the defendant dismisses the same.
    2. Eminent domain, § 224*—how statute allowing attorneys’ fees should be construed. Rev. St., ch. 47, sec. 10 (J. & A. 5260), allowing attorneys’ fees under certain conditions to the defendant in eminent domain proceedings, is in derogation of the common law, and should not be construed so as to authorize the taxation thereof unless the statute clearly warrants it.

      Appeal from the County Court of Pulaski county; the Hon. Willard P. Ellis, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed.
    Opinion filed April 17, 1916.
    Rehearing denied May 25, 1916.
    George E. Mártir, O. S. Miller and Charles L. Rice, for appellant.
    Fred Hood and Gillespie & Fitzgerald, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.

This is an appeal from a judgment of the County Court of Pulaski county in favor of appellee and against appellant for $550 attorneys’ fees, and $23.75 personal expenses, growing out of a condemnation suit filed by appellant against appellee for the condemnation of certain lands belonging to appellee, for the purpose of obtaining earth to raise and strengthen the levee system of the City of Mound City.

Said suit was tried in the County Court by a jury, and resulted in a judgment assessing compensation in favor of appellee here, from which judgment he took an appeal to the Supreme Court and secured a reversal. City of Mound City v. Mason, 262 Ill. 392.

A remanding order was filed and said cause was re-docketed in said County Court. Appellant, by leave of court, filed its amended petition for condemnation, and appellee filed his motion to dismiss said petition, for want of power in appellant to condemn his property. After hearing the preliminary proofs and arguments of counsel, the court dismissed appellant’s petition and, over the objection of appellant’s counsel, proceeded to hear evidence in support of appellee’s motion to be reimbursed for his attorneys’ fees and other expenses, covering the whole litigation, including the appeal to the Supreme Court, and gave judgment as above stated against appellant, from which judgment this appeal is prosecuted.

The determination of this question involves a construction of the proviso to section 10, of chapter 47, of Hurd’s Revised Statutes (J. & A. ft 5260), said proviso being as follows: “That in case the petitioner shall dismiss said petition before the entry of such order (the order for petitioner to enter upon such property and the use of same upon payment of full compensation as ascertained, etc.) or shall fail to make payment of full compensation within the time named in such order, that then such court or judge shall, upon application of the defendants to said petition, or either of them, make such order in such cause for the payment by the petitioner of all costs, expenses and reasonable attorney fees of such defendant or defendants paid or incurred by such defendant or defendants in defense of said petition, as upon the hearing of such application shall be right and just, and also for the payment of the taxable costs. ’ ’

It is contended by appellee that the provision of this statute is broad enough to include the dismissal of a petition for condemnation, not only where the same is voluntarily dismissed by the petitioner, but, also, where after a preliminary hearing the court on the motion of the defendant dismisses the same. Appellee insists in support of his position that the constitutional provision that private property shall not be taken for public purposes, except upon payment of just compensation, should be construed so as to require a petitioner to pay, not only compensation fixed by a jury and costs of the suit, as ordinarily understood, but also that it should be construed to require that the petitioner in a condemnation petition where the same is dismissed by the court over its objection, and where the property is not taken, as a matter of fact, shall be required to pay, not only the costs of the suit, but also the attorneys’ fees and other expenses incurred by the owners of said premises in and about the defense made by him in connection with such condemnation proceeding. In other words, appellee insists that even though the provision of the statute in question is not broad enough in its literal terms to include a judgment against a petitioner for attorneys’ fees and other expenses, where a petition for condemnation is dismissed by the court, that the courts in construing such statute should give it' that effect.

In his brief and argument appellee cites the following cases in support of his contention: Chicago & N. W. Ry. Co. v. City of Chicago, 148 Ill. 141; Epling v. Dickson, 170 Ill. 329; Sanitary District v. Bernstein, 175 Ill. 220; Peoria, B. & C. Traction Co. v. Vance, 251 Ill. 263.

We have examined each of these cases, but are unable to see how they can be held to support the contention of appellee. In Chicago & N. W. Ry. Co. v. City of Chicago, supra, it was held by the court, quoting from page 156: 11 That the constitution, in providing that ‘private property shall not be taken or damaged for public use without just compensation,’ could not have intended to require the owner to pay the costs reasonably incurred in the proceeding which results in the taking of his property against his will. Such reasonable costs should be included in the expenses, which are required to be paid by the petitioner -seeking condemnation.”

All that was determined in the case just quoted from is that in addition to the compensation found by the jury the court should adjudge the costs of the proceeding against the petitioner and by costs, is included only such costs as are ordinarily taxed in any court proceeding. In the case of Epling v. Dickson, supra, the court only held that the property owner in a condemnation suit, where the property is taken, is entitled to have the ordinary costs of the suit taxed against the petitioner following the judgment fixing the compensation. Sanitary District v. Bernstein, supra, was a condemnation suit, .and it appears that while the jury were being impaneled and after one or two jurors had been accepted, the Sanitary District dismissed its petition as to the lands of two of the defendants, who thereupon applied for an allowance of attorneys’ fees under the above proviso. It was insisted in the argument of said cause in the Supreme Court that the provision of above statute was only intended to apply where the petitioner dismissed its petition after a long hearing and where large expense had been incurred. The court in passing on this question, at page 220, says: “It is next claimed that the act does not apply to a dismissal of a petition before a verdict, but that it is designed to protect the land owner against the outlay of a long and expensive trial, followed by an abandonment of the proceedings after verdict, in case the petitioner is not satisfied with the award. The reason and purpose of the act apply as much to a dismissal at one time as at another, and its language is not limited. It includes any dismissal of the petition.”

It is now insisted that the court intended that the language “it includes any dismissal of the petition” should apply to the dismissal of a condemnation proceeding, not only where voluntarily made by the petitioner, but also when made by the court over petitioner’s objection. We do not think that the reading of this entire opinion warrants any such construction, and we do not believe that the court intended any such meaning to be attached to its language.

In the case of Peoria, B. & C. Traction Co. v. Vance, supra, all that was decided by the Supreme Court was with reference to the ordinary costs, and did not include attorneys’ fees or other expenses.

A careful reading of each of these cases clearly discloses that they cannot be held to support the contention of appellee in this case. The language of the above statute seems so clear that it hardly admits of construction. However, in the recent case of Chicago Great Western R. Co. v. Ashelford, 268 Ill. at page 87, the court in passing on the proviso of section 10 above referred to, at page 93, uses this language: “The evident purpose of the proviso to said section 10 was to provide for two instances in which the defendant would be entitled to an order requiring the petitioner to pay the expenses incurred by him in making his defense to the petition: First, in case the petitioner should voluntarily dismiss the petition; and second, in case the petitioner should fail to make payment of full compensation within the time named in the order. In our opinion this was the sole purpose of the proviso.”

It would seem from the language of this case that the Supreme Court has left but little doubt as to the construction that it places on this statute, and that it only applies where the petition is voluntarily dismissed by the petitioner or where the petitioner fails to pay the compensation within the time fixed by the statute. It is well to bear in mind in the construction of a statute, with reference to the allowance of attorneys’ fees, to be taxed against the opposite party, that such statute is in derogation of the common law and that there is no right to have such fees so taxed unless the provision of such statute clearly warrants the same.

For the reasons above mentioned the judgment of the trial court is reversed without remanding.

Reversed.


text:
    Mattie P. Bourland, Appellee, v. Louisville & Nashville Railroad Company, Appellant.
    (Not to be'reported in full.)
    Appeal from the Circuit Court of Washington county; the Hon. Louis Bekneeuteb, Judge, presiding. Heard in this court at the October term, 1915.
    Petition for certiorari dismissed.
    Affirmed.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Action by Mattie P. Bourland, plaintiff, against the Louisville & Nashville Bailroad Company, defendant, to recover for damages for personal injuries sustained as a result of slipping on a banana peeling on the third step of one of defendant’s cars as she was attempting to board the train. From a judgment for plaintiff for $1,000, defendant appeals.
    The declaration, which consisted of two counts, alleged that defendant failed to exercise reasonable care to keep its platform and the steps of its coaches clean, and permitted banana peelings, garbage and refuse to accumulate upon its platform and the steps of one of its coaches, and that plaintiff, while attempting to board the train, was thereby caused to slip and fall, sustaining a severe nervous shock, laceration and strain of the muscles and ligaments, and that she was permanently injured.
    The train which plaintiff attempted to board was an accommodation train consisting of a baggage car, smoker and ladies’ car, starting from St. Louis and reaching Ashley about eight o’clock at night. When plaintiff reached the second or third step of the car she slipped and fell in a heap to the right and somewhat backward, but not off of the steps of the car. The station at Ashley was on the north side of defendant’s railroad track, and the next five stations west of Ashley were on the south side of defendant’s track, and the last station on the north side of defendant’s track before arriving at Ashley was Mascontah.
    The evidence tended to show that plaintiff was more or less of a nervous temperament, and that up to some two years prior to this accident she had been in ill health, but that for two years preceding the accident her health had been good and that she had done the housework without assistance for a family of four; that subsequent to the accident she had been unable for six weeks to leave her bed and that she had not been able, up to the time of the trial, some four or six months after the accident, to walk without assistance.
    The only evidence to dispute plaintiff in this regard were two witnesses, neighbors of plaintiff, who testified that they had observed her doing her house work, and one of them testified that they saw her get into a buggy unassisted and had seen her sweep the walks in front of her house. Two physicians examined plaintiff at the time of the injury, one called at the instance of plaintiff and the other being the physician of defendant’s railroad, both of whom found an injury on plaintiff’s hip, and it was thought by them when the injury first occurred that one of the lower limbs of plaintiff was some two inches shorter than the other, but the railroad physician afterwards became of the opinion on measurement that this was not true. Plaintiff’s physician who had charge of her after the first examination testified that following the injury at Ashley, plaintiff suffered disorders of the pelvic organs and the womb, that one of the fingers of plaintiff was injured at the time of the accident, that it festered and a part of the bone thereafter became detached' and sloughed off.
    James M. Hamill and Charles P. Hamill, for appellant.
    Noleman & Smith and H. H. House, for appellee.

      Abstract of the Decision.
    1. Carriers, § 476

      —when evidence sufficient to establish that presence of banana peeling on car steps proximate cause of injury to passenger. In an action by a passenger against a railroad company for damages for personal injuries alleged to have been sustained as a result of slipping on a banana peeling on one of the steps of one of defendant’s cars as plaintiff was attempting to board the car, where the evidence as to the existence of the banana peeling on the step was conflicting, but plaintiff’s testimony was positive in character and defendant’s mainly negative, evidence held sufficient to sustain a finding as to the existence of such banana peeling on the step and that it was the proximate cause of the injury to plaintiff.
    2. Carriers, § 278*—what degree of care required toioards passengers. A railroad company must use the highest degree of care for the protection of a passenger consistent with the practical operation of the road.
    3. Carriers, § 476*—when evidence sufficient to show knowledge of servants of existence of object on step of car. In an action by peeling while attempting to board a train, where it appeared that a passenger for damages for injuries due to slipping on a banana the next station on the same side of the railroad track was five stations distant, evidence held sufficient to sustain a finding that defendant’s servants knew of the existence of the banana peeling on the steps, or should have known of it.
    4. Husband and wire, § 196*—who may recover for loss of services of wife. At common law the husband only could. recover for the loss of services of the wife, and under the statutes this rule has not been entirely abrogated.
    5. Husband and wire, § 194*—when giving of instructions on right of wife to recover for loss of time not reversible error. In an action by a married woman for damages for personal injuries due to slipping on car steps while attempting to board a train, an instruction on damages allowing as one of the elements thereof recoverable, “loss of time” of plaintiff, held not reversible error in view of the evidence.
    6. Instructions, § 151*—when refusal .of requested instructions not erroneous. It is not error to refuse requested instructions covered by given instructions.
    7. , Instructions, § 12*—when refusal of requested instruction

      proper. An instruction which is lengthy, involved, and calculated to mislead the jury is properly refused.

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

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

   Mr. Justice Boggs

delivered the opinion of the court.

8. Appeal and error, § 1406 —when verdict for damages not disturbed as being' excessive. A verdict for damages for personal injuries will not be disturbed as excessive unless against the manifest weight of evidence.

9. Damages, § 114*—when verdict for injuries to woman not excessive. A verdict for $1,000 in favor of a woman for injuries to the pelvic organs and the womb and the loss of one finger, held not excessive.


text:
    Mrs. H. C. Riepe, Appellee, v. Edward H. Schmidt, Appellant.
    1. Wills—when presumed that will would not have been written. Where a will is ambulatory, not being executed or witnessed at the time of the writing thereof and the making of a promise- by a son to give his sister a certain sum of money, it must be presumed that the will would not have been written if the son had refused a compliance with testator’s request.
    2. Contracts, § 86*—when promise by son to father to pay sister certain sum of money based on sufficient consideration. A sufficient consideration arises for the promise of a son to his father, the testator, to pay his sister a certain sum of money at the time of the writing of an ambulatory will in his favor where such will would not have been written but for such promise.
    3. Contracts, § 349*—when third person may sue on contract for his benefit. A daughter may sue on a promise made to her father, the testator, by her brother to pay her a sum of money where a sufficient consideration—the writing of an ambulatory will in the son’s favor which would not otherwise have been written—forms the basis for the promise.
    4. Wills, § 139*—what does not constitute variance of terms of will by parol testimony. Evidence that a son made a promise to- his father to pay his sister a certain sum of money at the time of the writing of an ambulatory will devising certain property to the son is not inadmissible as tending to vary the terms of the will.

      5. Contracts, § 86

      —when agreement to settle with heir unprovided for in will based on sufficient consideration. The making of deeds to property to devisees at the time of the final settlement of an estate, joined in by a daughter of testator, who was not mentioned in the will, constitutes a sufficient consideration for an agreement by a devisee to settle with the daughter for a certain sum.
    Appeal from the Circuit Court of Massac county; -the Hon. William: N. Butler, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    C. L. V. Mulkey and W. L. Krone, for appellant.
    H. A. Evans, for appellee.

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

   Mr. Justice Boggs

delivered he opinion of the court.

This is an action of assumpsit brought by appellee against appellant on a promissory note for $650. To appellee’s declaration in assumpsit, appellant filed a plea alleging no consideration. A jury was waived and trial had before the court and a finding made, and judgment rendered in favor of appellee for $693.87, from which judgment this appeal is prosecuted.

The grounds relied upon by appellant for a reversal of said cause are, first, that the court erred in admitting improper evidence on behalf of appellee, and second, that the court erred in finding the issues for appellee and rendering judgment against appellant.

The facts material to a determination of the issues raised on this record are in substance as follows: Three years before the execution of the note in question, John Adams Schmidt, father of appellee and appellant, died testate, seized of two farms, one of 160 acres and another of 120 acres, the latter being his homestead; Said testator was also possessed at the time of his death of certain live stock and farming implements and about $2,500 in money or its equivalent. He left surviving him a widow, Mary Schmidt, a son, Charles J. Schmidt, appellee, his daughter and appellant, his son, who at the time of his father’s death was about eighteen years of age. The father died about May 23, 1910. Some three days before his death he made a will, in and by which said will he devised to his son, Charles J. Schmidt, the 160 acre farm and $2,000 in cash and a team; to his son, Edward H. Schmidt, the appellant, he devised said 120 acre farm, together with tools, stock, etc., with the proviso that he should support his mother, Mary Schmidt, during her lifetime, and also bequeathed to appellee $2,000 in cash.

The undisputed evidence discloses that when the will in question was being written the wife and all of the children, including appellant and appellee, were present. Appellee at the request of said testator wrote the will. While the will was being written the testator said to appellant, “Ed you get the home place, 120 acres, and all of the tools and all the stock. You must pay out Clara (referring to appellee) $2,000” and appellant replied, “Yes, sir, that is all right.” This statement by the testator to appellant and appellant’s reply thereto was testified to by appellee and by Charles Schmidt, the other son, and by Mrs. Schmidt, the wife and by Henry Maess and by Henry Wessel, who were witnesses to the will. In fact, appellant does not attempt to dispute this evidence. His contention being the evidence was not admissible and that to give effect to this agreement between appellant and his father would be to vary the terms of the will by-oral testimony.

The evidence was to the effect that some three years after the death of the testator appellant and appellee, their mother, Mrs. Schmidt, and Charles Schmidt, the other son, were at the court house for the purpose of making final settlement of the estate of the testator; that while there, it was agreed among them that a deed should he made to appellant for the 120 acres willed to him by his father and a deed should be made to Charles Schmidt for the 160 acres willed to.him; that appellee and the mother, Mrs. Schmidt, were to join in these deeds. The evidence was also to the effect that at the time this arrangement was made with reference to the execution of these deeds it was agreed by appellant that on his return home he would settle with appellee for the $2,000 he was to pay to her under his agreement with his father.

The evidence further discloses that the deeds were made and that appellant settled with appellee by paying her $1,350, and by giving her the note in question for $650.

It is contended by appellant that he thought the will of his father directed him to pay the $2,000 to appellee and that he first learned that the will did not so specify ■sometime after the note of $650 was given. Charles Adkins, who assisted in making final settlement of the estate of the testator and in preparing the deeds in question, testified that at the time, he read the will over in the presence of Mrs. Schmidt, Charles Schmidt, appellant and appellee. Charles Schmidt, the brother of appellant, testified to the same effect. And appellee testified he was present and could have heard it if he wanted to. The only reason this evidence is at all material, however, is for the purpose of showing that appellant at the time of final settlement and when the deeds were made, and when arrangements were made that he should settle up with appellee, knew the contents of the will and made the agreement with appellee with the full understanding of the same.

It is seriously contended by appellant that if appellee is allowed to recover ip. this case it will have the effect of changing the will of his father, the testator, and that this cannot be done, and that therefore there was no consideration for the note. We are of the opinion that appellant misapprehended the effect of the request made by his father, and of his promise to his father at the time the will was being drafted. The will being ambulatory, not having been executed or witnessed at that time, it is fair to presume that had appellant refused to promise a compliance with his father’s request, that the will would not have been written as it was. If that much be conceded, then it forms a consideration for appellant’s promise.

It must be remembered in this case that appellee is suing on a promise made by her father for her benefit, and where a sufficient consideration forms the basis of the promise she can recover thereon in her own name. (Lawrence v. Oglesby, 178 Ill. 122; Bristow v. Lane, 21 Ill. 194; Hartford Fire Ins. Co. v. Olcott, 97 Ill. 439; Snell v. Ives, 85 Ill. 279.)

The case of Lawrence v. Oglesby, supra, is a case somewhat similar to the case at bar, and the court in passing oh the question as to whether or not a promise made by a son to his father that he would pay to his sister $1,500, at page 129, says: “To hold the son could not be required to comply with such promise, as not being based on a sufficient consideration, would be to disregard the fact that the will was merely ambulatory and could be changed by the testator so long as he was of sound and disposing mind,' and that he must have known that fact, and would be, in effect, to aid the appellant in the perpetration of a fraud on appellee. * * * It is not a change of testamentary terms by a verbal agreement nor a revocation of a will by spoken words; neither is it an attempt to engraft a parol trust in opposition to the terms of a will. The will remained as it was written. It was not changed because of the promise; neither can it be doubted that had the promise not been made it would not have remained as written. There was here a full and sufficient consideration for the promise. That promise was for the benefit of appellee. Where a contract is entered into by one with another for the benefit of a third person, such third person may bring an action in his own name for a breach thereof. Such is the well recognized rule, and one not an open question in this State.”

There were no propositions of law presented to the trial judge in this case, and therefore the only matters to be determined by this court is with reference to the admission of evidence of the agreement between appellant and his father, and as to whether the finding of the court is against the manifest weight of the evidence.

What we have already said, we think, effectually disposes of both of these propositions. We think, too, without reference to the evidence touching said agreement, the making of the deeds at the time of the final settlement of the estate, in which appellee joined, was a sufficient consideration for the agreement of appellant to settle with her for the $2,000.

Finding no reversible error in the record the judgment of the trial court will be affirmed.

Affirmed.


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    John C. Glascock by M. C. Glascock, Appellee, v. George Gerold, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of St. Clair county; the Hon. Geoeoe A. Cbow, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.

      Statement of the Case.
    Action by John C. Glascock, a minor, by M. C. Glascock, his next friend, plaintiff, against George Gerold, defendant, to recover damages for personal injuries alleged to be due to his being hit by a brick thrown at him by defendant while he was climbing down from the top of defendant’s building, thus causing him to fall to the ground. From a judgment for plaintiff for eight hundred dollars, defendant appeals.
    Defendant was the owner of a flat-roofed, two-story brick building used for warehouse purposes, located on 13th street in the City of East St. Louis. Prior to the injury in question there had been another brick building adjoining this building on the rear, which had burned leaving a portion of its side wall standing, adjoining defendant’s warehouse. There was also a portion of the wall of the burned building extending west from the north wall of defendant’s building. These broken walls extended down in a broken standing condition from the top of defendant’s building to the ground. On the date in question plaintiff, who was then thirteen 'years of age, in company with two other boys of about the same age, had climbed up the broken walls of the burned building and had got on top of the warehouse in question and were looking for pigeons and eggs. Defendant saw them and exclaimed: “I have the boys that have been stealing my pigeons.” Thereupon the boys tried to make their escape from the building. Plaintiff testified that as he was starting down backward on this broken wall, defendant threw a brick and struck him on the shoulder; that he fell from the wall to the ground, being about twenty feet, and broke the tibia or large bone of his 'leg below the kneel The injury received by plaintiff kept him in the hospital for nineteen days and confined him to his home for about four weeks. After he started to school he still had to use crutches for some considerable time. The evidence was very conflicting.
    Abstract of the Decision.
    1. Assault and battery, § 14

      —when evidence sufficient to sustain verdict. In an action for damages for personal injuries to a boy thirteen years of age, alleged to be due to his being struck by a brick thrown by defendant while plaintiff, who had been on top of defendant’s building gathering pigeon eggs, was climbing down the wall of a partially destroyed brick building adjoining defendant’s in the rear, this causing plaintiff to fall a distance of twenty feet, where the evidence was conflicting as to whether defendant threw the brick at plaintiff, evidence held sufficient to sustain the verdict in favor of plaintiff.
    2. Damages, § 124*—when verdict for injuries to leg of hoy not excessive. In an action for damages for personal injuries to a boy thirteen years of age where there was evidence that the tibia of one leg was fractured and at the time of trial the foot of the injured limb was thrown out so that plaintiff could not walk on it, but such defect would not be permanent, a verdict for eight hundred dollars held not excessive.

      The evidence tended to show that plaintiff sustained a very serious injury. The doctors testified that the tibia was fractured and that part of the bone was removed. They further testified that in order to secure a (proper union of the fractured bone they inserted in the canal of the bone a peg made of wood to assist in holding the bone in place. They also were compelled to tie together the broken ends of the bone with a wire thread. The evidence further disclosed that at the time of the trial the foot of the injured limb was more or less thrown outward and that plaintiff could not stand straight on the same. The doctors were of the opinion, however, that he would ultimately recover from this defect.
    L. Y. Walcott and D. J. Sullivan, for appellant.
    C. P. Coultas, for appellee.

      See Illinois Notes Digest, Vols. XX to XV, and Cumulative Quarterly, same tonic and section number»

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

   Mr. Justice Boggs

delivered the opinion of the court.

3. Assault and battery, § 14 —what degree of proof necessary in civil action. In a civil action for assault and battery, the plaintiff need only prove his case by a preponderance of the evidence.

4. Appeal and ebbor, § 1241*—when error in giving instructions unavailable by giving of similar instructions for adverse party. In a civil action for damages for an assault and battery, any error in an instruction for the plaintiff that the latter need prove his case only by a slight preponderance of the evidence is unavailable where given instructions presented by defendant only require the plaintiff to prove his case by a preponderance of the evidence.

5. Instructions, § 87*—when instruction on preponderance of evidence correct. An instruction in a civil action that if plaintiff’s evidence preponderates but slightly it is sufficient is correct.


text:
    Harvey S. Converse, Appellee, v. Independent Breweries Company, Appellant.
    (Not to foe reported in full.)
    Appeal from the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Bill by Harvey S. Converse, complainant, against Independent Breweries Company, defendant, to enjoin the prosecution of a forcible entry and detainer suit against complainant and another brewery company to obtain possession of a building used for saloon purposes, and to cancel a purported lease of said premises. given by complainant to defendant on the ground of fraud. From a judgment for complainant, defendant appeals.

      Abstract of the Decision.
    1. Landlord and tenant, § 35

      —when unsigned legse not complete contract. A lease is not a complete contract until it is signed by both parties.
    2. Landlord and tenant, § 39*—when offer to lease revocable. An offer to lease premises in the form of a written lease signed by the lessor may be withdrawn at any time before acceptance and execution of the same by the proposed lessee.
    3. Landlord and tenant, § 39*—what constitutes revocation of offer to lease. The leasing of premises to a third person under an accepted option constitutes a withdrawal of an offer to lease premises consisting of a written lease signed by the lessor but not signed or accepted by the proposed lessee.
    4. Evidence, § 319*—when parol evidence rule, inapplicable. The rule that parol evidence is inadmissible to vary a written contract is inapplicable where such contract did not take effect.
    5. Landlord and tenant, § 19*—when evidence sufficient to sustain finding that lease not to be effective if third person exercised option to lease premises. On a bill by the owner of premises to enjoin the prosecution of a forcible entry and detainer suit against plaintiff and his lessee, to obtain possession of the premises and to cancel a purported lease of said premises to complainant, where the evidence was conflicting, evidence held sufficient to sustain a finding that the lease to defendant was signed by complainant on condition that it was not to become effective if a third person elected to lease the premises under its pre-existing option.
    N. C. Lyrla, for appellant.
    W. E. Knowles, for appellee.

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

   Mr. Justice Boggs

delivered the opinion of the court.


text:
    T. J. Christmann, Administrator, Appellee, v. Illinois Central Railroad Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of St. Clair county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the October term, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 17, 1916.
    Rehearing denied May 25, 1916.
    Statement of the Case.
    Action by T. J. Christmann, administrator, of the estate of Philip Christmann, deceased, plaintiff, against Illinois Central Bailroad Company, defendant, for damages for the death of plaintiff’s decedent caused by being struck by defendant’s engine while plaintiff was proceeding longitudinally across a highway on defendant’s track. From a judgment for plaintiff, defendant appeals.
    The declaration consists of three counts. The first count charged that defendant was driving a certain locomotive engine in a southeasterly direction in the City of Belleville towards the crossing on Jackson street in said city without any light on the front end thereof, and in consequence thereof, plaintiff’s intestate while attempting to go over said crossing at said place was struck by said engine, receiving an injury from which he afterwards died!
    The second count relied on an ordinance of said city limiting the speed in said city of passenger trains to ten miles per hour, and other trains to six miles per hour, and charged that defendant at about 10:30 p. m. on the evening in question drove a certain locomotive engine on its said tracks towards said crossing at a greater rate of speed than six miles per hour, to wit, at twenty miles per hour, in violation of said ordinance, and that by reason whereof said engine struck plaintiff’s intestate and caused injuries to Mm from wMch he afterwards died.
    The third count charged general negligence in the operation of said engine, resulting in injury to plaintiff’s intestate as he was attempting to cross said track. Each of said counts alleged due care on the part of plaintiff’s intestate at the time of said injury.
    Jackson street in the City of Belleville runs north and south, and Tenth street east and west. Defendant’s railroad runs in a northwesterly and southeasterly direction through said city at and near the point where it crosses Jackson street. At the intersection of Jackson and Tenth streets, on the southerly side of defendant’s right of way, is located a combination saloon and residence. The south side of said building is on the north street line of Tenth street and, on said street line, runs to within about five feet of the west line of Jackson street. There are two doors to the saloon, one at the southeast corner on Tenth street and the other at the northeast corner.
    Victor Christmann, the brother of plaintiff’s intestate, lived on the southwesterly side of the railroad track about one hundred and sixty-five feet northwesterly from the intersection of the south line of the railroad right of way with Jackson street. There was a back gate leading from the rear of Victor Christmann ’s lot to the right of way, and nearly opposite this gate was a crqss-over switch. On the evening of August 29, 1914, plaintiff’s 'intestate, with one Julius Bingheim, spent the evemng at the residence of his brother, Victor Christmann. A little after ten o’clock it was agreed that plaintiff’s intestate should go to the saloon in question and obtain a bucket of beer for the company. He, with his brother, Victor Christmann, walked to the gate leading from the Christmann residence to the right of way of defendant’s railroad. Plaintiff’s intestate passed through the gate onto the right of way and turned in a southeasterly direction down the right of way towards Jackson street. His brother Victor returned to his house. The evidence was not entirely clear as to whether plaintiff’s intestate walked down the center of what is known as the southbound track of defendant’s railroad, or whether he walked between said tracks and the fence. However, it was conceded that later on, if not immediately, he got upon said southbound track on his way to the saloon.
    Victor Christmann testified that after his brother entered the right of way of defendant’s railroad he looked in a northwesterly direction, that at that time no train or engine could be seen. This was the last time that Victor Christmann saw his brother until after the injury. The only person who saw plaintiff’s intestate after he left his brother Victor at the gate and passed onto the right of way was Lorane Christmann, a son of Victor Christmann, a boy about thirteen years of age, who. testified that he was playing in the yard and that shortly after his uncle had passed through the gate on the right of way and started for the saloon, an engine came along from the northwest going in a southeasterly direction; that it stopped at the cross-over switch opposite his father’s house and that the switch was thrown and the engine again started in a southeasterly direction. He further testified that he leaped over the fence and started towards his uncle; that he ran all the way as he was fearful on account of his uncle’s hearing not being good that he might be injured by said engine; that a short distance before his uncle reached Jackson street his uncle slowed up for the purpose of lighting his pipe, and that just before he reached him said engine struck him and knocked him down; that when he found him he was lying on the crossing at Jackson street between the rails of the southbound track. He further testified that he immediately notified his father, Victor Christmann, who also in his testimony stated that at the time he found his brother he was on the crossing at Jackson street between the rails of the southbound track.
    Abstract of the Decision.
    1. Railroads, § 733

      —when evidence sufficient to sustain finding that accident to pedestrian occurred on highway crossing. In an action for damages for the death of a person who entered a railroad right of way in the nighttime a short distance from a highway crossing and proceeded in a southeasterly direction along such right of way towards such highway crossing and was found dead on such highway crossing, where the evidence was sharply conflicting as to where deceased was when struck hy a backing engine, evidence held sufficient to sustain a finding that the accident occurred on the highway crossing.
    2. Railroads, § 733*—when evidence sufficient to sustain finding as to negligence in operation. In an action for the death of a person who entered a railroad right of way in the nighttime a short distance from a street crossing, and proceeded in a southeasterly direction towards such street along the right of way and was struck by a backing engine at such street crossing, where the evidence was sharply conflicting as to whether the engine was proceeding at a speed exceeding that prescribed by a city ordinance, whether a bell was' ringing, or whether the engine had a light on its rear end, evidence held sufficient to establish negligence in operation.

      The evidence disclosed that on account of obstructions shutting off the light from the electric lights, the crossing at Jackson street was dark. The evidence was sharply conflicting as to where plaintiff’s intestate was when struck by the engine, whether at the crossing or twenty-five to thirty feet away on the railroad right of way. The evidence was also conflicting as to the speed of the engine as it approached Jackson street, whether a bell was ringing, whether a whistle was blown or other signal given, and whether the engine, which was being driven backward, had a light on its rear end.
    Kramer, Kramer & Campbell, for appellant; John Q-. Drennan, of counsel.
    T. M. Webb, for appellee.

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

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

   Mr. Justice Boggs

delivered the opinion of the court.

3. Railboads, § 656 —when contributory negligence of deaf pedestrian walking on track in failing to look second time for approaching train question for jury. In an action for the death of a person who entered a railroad right of way in the nighttime, 165 feet from a street crossing, and proceeded in a southeasterly direction to the street crossing where he was struck by a backing engine, when it appeared that he was somewhat deaf, and there was evidence that he looked down the track in a northwesterly direction and at such time no engine could be seen, but failed to again look around, and there was evidence that the engine had no light, that it was driven at an illegal speed, and that no bell or other warning was given on approaching the crossing, held that the contributory negligence of plaintiff was a question for the jury.

4. Railboads, § 661*—when pedestrian traveling on railroad right of way at street crossing may assume that company mil comply with law. A pedestrian traveling upon a railroad right of way in a longitudinal direction upon the track, over a street crossing, may assume that the railroad company will perform the duty imposed upon it by law to carry proper lights on its engines at night, and to not operate engines without giving warning upon approaching a street crossing and in violation of speed ordinances.

5. Railboads, § 684*—when pedestrian may cross street longitudinally on railroad track. A pedestrian may cross a street longitudinally on a railroad track, irrespective of the fact that he committed a trespass prior to going upon the street in entering upon the railroad.

6. Instructions, § 137*—when properly refused. Instructions which do not state correct principles of law are properly refused.

7. Instructions, § 151*—when requested instruction covered by given instructions properly refused. Requested instructions fully covered by given instructions are properly refused.

8. Railboads, § 619*—what constitutes a “train” within speed ordinance. An engine being driven backward is a “train” within an ordinance limiting the speed of trains upon approaching street crossings.