text:
    Mabel Rathbun, Appellee, v. Ocean Accident and Guarantee Corporation, Limited, Appellant.
    1. Carriers, § 3

      —who are common carriers. Distinction between a common carrier and private carrier defined.
    2. Carriers, § 7*—liverymen as common carriers. Liverymen are not. common .carriers.
    3. Livery stable keepers, § 1*—right of livery stable keeper to lien. Livery stable keepers have not, like innkeepers, a lien upon live stock left with them for compensation for keep.
    4. Carriers, § 7*—proprietors of taxicabs, hacks, etc., as common carriers. Proprietors of taxicabs, stagecoaches, hacks and omnibuses are common carriers.
    5. Carriers, § 3*—when question of person being common carrier is for jury. Whether or not partners carrying on a taxicab business were common carriers was a question of fact for the jury.
    6. Appeal and error, § 1392*—what will be considered on appeal from directed verdict. In passing on the question whether the trial court, in an action on an accident insurance policy, erred in denying appellant’s motion to direct a verdict for single indemnity, the Appellate Court did not weigh the evidence but determined whether or not there was any evidence fairly tending to support plaintiff’s case.
    7. Trial, § 60*—when sufficiency of evidence is question of law. The question whether there is any evidence fairly tending to support plaintiff’s cause of action is one of law.
    8. Carriers, § 7*—when evidence establishes business as that of common carrier. Evidence, in an action against an accident insurance company for double indemnity, for the death of plaintiff’s intestate in a collision between a street car and the automobile in which he was riding and which he had hired from a partnership carrying on a taxicab business, fairly tended to prove that such partnership held itself out as an undertaking for hire to carry indiscriminately all persons applying and offering to pay their charges, and placed it in the same class as coachmen, hackmen and omnibus drivers, and it therefore was a common carrier.
    9. Carriers, § 3*—how carriers are defined. In defining the status of common carriers, the word “public” does not mean everybody all the time.
    10. Appeal and error, § 1402*—what court will determine as to evidence on appeal. Whether the evidence is clearly and manifestly against the weight of the evidence is a question of fact which, if properly presented, it is the duty of the Appellate Court to determine.
    Appeal from the Circuit Court of Vermilion county; the Hon. Augustus A. Pabtlow, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed October 27, 1920.
    H. M. Steely and H. M. Steely, Jr., for appellant.
    Acton & Acton, for appellee.

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

   Mr. Presiding Justice Waggoner

delivered the opinion of the court.

Mabel Bathbun brought an action in assumpsit on an insurance policy issued by the Ocean Accident and Guarantee Corporation, Limited, for the death of her husband, Dr. James Corbett Bathbun. The amount of the policy, under three different provisions contained therein, is $6,000. The policy contains a provision for double that amount if the injuries sustained are while the insured is a passenger in or on a public conveyance (including the platform, steps or running board thereof) or in a public cab provided by a common carrier for passenger service. Appellant admits liability for single indemnity, under the evidence in the case, but denies that it is liable for double indemnity. The judgment was "for double indemnity (including interest), $12,350, and the insurance company appealed.

The deceased met his death November 12,1918, while riding in an automobile belonging to Bayle Brothers. It was stipulated, on the trial, that he was accidentally killed in a collision between the automobile, in which he was riding, and an interurban car at the Batestown crossing about three miles west from Danville. On the afternoon of that day Dr. Bathbun received a call to go to Missionfield, six miles west from Danville, to see a patient. He telephoned Bayle Brothers to send an automobile and driver to his office. When the car came he got in, with the driver, started for Mission-field, and on the way to that place the collision occurred and Dr. Rathbun was killed. The question, presented in this case, is was the deceased a passenger in or on a public conveyance or in a public cab provided by a common carrier for passenger service?

Appellant contends that Rayle Brothers were not common carriers but merely private carriers for hire like liverymen; and that the automobile in which Dr. Rathbun was riding was on that trip his private conveyance for use in his private business under a special contract, namely, his call and the delivery of the conveyance and driver into his charge to go where he wanted it to; to stop when, where and as often as he desired; to take with him whoever he saw fit without extra charge; to stay out as long as he wanted and return whenever he got ready to do so. In other words, that he was a bailee for hire and the bailors had no control of the automobile until surrendered to them nor of the driver.

It is the contention of appellee that Rayle Brothers were engaged in business as common carriers for hire, held themselves out as such, and that Dr. Rathbun at the time of the accident was a passenger for hire in a public conveyance or cab operated by Rayle Brothers for passenger service.

“A common carrier is one who undertakes for hire to transport from place to place the goods of such as choose to employ him.” (Kenna v. Calumet, H. & S. E. R. Co., 284 Ill. 301, 305, 18 N. C. C. A. 671; Illinois Cent. R. Co. v. Frankenberg, 54 Ill. 88, 95.) A common carrier of passengers has been defined as “one who undertakes for hire to carry all persons indifferently who may apply for passage, so long as there is room and there is no legal excuse for refusing. ” 4 R. C. L. p. 1000. “The authorities recognize two classes of carriers, viz., private carriers and common carriers. All persons who undertake-for hire, to carry the goods of another, belong to one or the other of those classes. The former, like ordinary bailees for hire, are liable only for the injury or loss of the goods intrusted to them when it results from the failure of themselves or their servants to exercise ordinary care. The latter are liable as insurers for all injury or loss not resulting from the act- of Q-od or of the public enemy. The former are not bound to carry for any reason unless they e nter into a special agreement to do so. The latter are bound to carry for all who offer such goods as they are accustomed to carry and tender reasonable compensation for carrying them; and if they refuse to perform their obligation in this respect, they are liable to respond in damages.” 4 R. C. L. pp. 549-550. “The distinctive characteristic of a common carrier is that he undertakes to carry for all people indifferently; and hence he is regarded, in some respects, as a public servant.' In order to impress upon one the character and impose upon him the liabilities of a common carrier, his conduct must amount to a public offer to carry for all who tender him such goods as he is accustomed to carry. The definition has not always been thus restricted, but the law applicable to common carriers is peculiarly rigorous, and it ought not to be extended to persons who have not expressly assumed that character, or by their conduct and from the nature off their business justified the belief on the part of the public that they intended to assume it. No special contract with a common carrier is necessary to subject him to all the liabilities as such to the person applying; because the undertaking of a common carrier is general and embraces every one in the community, and to make it particular as an undertaking with a single individual it is necessary only to apply with the goods to the carrier.” 4 R. C. L. pp. 546-547. “Every common carrier has the right to determine what particular line of business he will follow. If he elects to carry freight only, he will be under no obligation to carry passengers, and vice versa; so if he holds himself out as a carrier of a particular kind of freight generally, prepared for carriage in a particular way, he will only be bound to carry to the extent and in the manner proposed. ” 4 R. C. L. p. 551.

Appellant claims that Rayle Brothers were merely private carriers like liverymen. It has been held that a livery stable keeper is not a common carrier of passengers and does not assume the duties and obligations of such a carrier. (Payne v. Halstead, 44 Ill. App. 97; City of Havana v. Vanlaningham, 17 Ill. App. 62.) The authorities generally hold that livery stable keepers lack one of the essential qualities of a common carrier, that is, a readiness to carry any and all persons who apply, offer to pay the charges of the carrier and comply with its regulations. (Note in 2 Anno. Cases, p. 344.) The court in Stanley v. Steele, 77 Conn. 688, said: “While the proprietors of stagecoaches, hacks and omnibuses, who hold themselves out to the public as general conveyors of passengers from place to place for hire with their own drivers, may be included in the class known as public or common carriers of passengers, livery stable keepers, whose business it is to care for the horses and carriages of others * * * either with or without drivers, are not common carriers of passengers, within the legal meaning of that term. Cooley on Torts, sec. 638; Payne v. Halstead, 44 Ill. App. 97; Siegrist v. Arnot, 86 Mo. 200; Erickson v. Barber, 83 Iowa 367; Copeland v. Draper, 157 Mass. 558. By merely carrying on such a livery stable business the proprietors of it do not hold themselves out as undertaking, for hire, to carry indiscriminately any persons who may apply, either to certain places or to such places as they may desire to be carried to. Flirthermore, those who hire carriages from livery stable keepers.are not necessarily conveyed by the vehicles, horses and drivers chosen by the proprietor, but may, in a measure, protect themselves by selecting the particular carriage, horse and driver they wish to hire. The rule of law which requires ‘the strictest and highest degree of diligence of a public carrier of passengers ’ is not applicable to a mere livery stable keeper. ‘Such livery stable keeper,’ says the court in Payne v. Halstead, 44 Ill. App. 97, 102, ‘is not a common carrier of passengers, and does not assume the duties and obligations of such a carrier. He is at most a private carrier for hire. * * * Such a one undertakes to possess the skill adequate to the undertaking, and promises to exercise due diligence and care in its performance, but ordinary skill, diligence and prudence are all that the law exacts from him. * * * The highest degree of diligence is the rule as to public carriers of passengers, and public policy forbids its relaxation; but a private carrier for hire may discharge himself from liability for accident by showing that he exercised the usual skill, care and diligence ordinarily exercised by those engaged in the same pursuit, to furnish a safe coach, harness and horses, and a competent and careful driver. ’ ”

Livery stable keepers have no lien at common law upon the live stock left with them for compensation for keep, and they are less fortunate in this particular than innkeepers who at common law are entitled to a lien upon the live stock intrusted to their keeping by a guest. The reason given for thus distinguishing liverymen from innkeepers is that the latter are required to offer accommodations to persons generally and to care for their horses and other live stock during the period their owner remains as a guest of .the innkeeper. And furthermore, the innkeeper is answerable for the goods of the guest although they may be stolen or lost without any fault on his part. 17 R. C. L. p. 1046.

The proprietors of stagecoaches, hacks and ornnibuses are common carriers. Parmele v. Lowitz, 74 Ill. 116; Stanley v. Steele, 77 Conn. 688.

In the case of Terminal Taxicab Co. v. Kutz, 241 U. S. 252, the court in discussing whether the plaintiff, in furnishing automobiles from its central garage on orders generally by telephone, was a common carrier and subject to regulations as a public utility said: “Although I have not been able to free my mind from doubt, the court is of opinion that this part of the business is not to be regarded as a public utility. It is true that all business, and, for the matter of that, every life in all its details, has a public aspect, some bearing upon the welfare of the community in which it is passed. But, however it may have been in earlier days as to the common callings, it is assumed in our time that an invitation to the public to buy does not necessarily entail an obligation to sell. It is assumed that an ordinary shopkeeper may refuse his wares arbitrarily to a customer whom he dislikes, and although that consideration is not conclusive (German Alliance Ins. Co. v. Lewis, 233 U. S. 389, 407), it is assumed that such a calling is not public as the word is used. In the absence of clear language to the contrary it would be assumed that an ordinary livery stable stood on the same footing as a common shop, and there seems to be no difference between the plaintiff’s service from its garage and that of a livery stable.”

In the case of City of Chicago v. Kluever, 257 Ill. 317, 319-320, the question of whether an auto livery company was a common carrier was raised but not decided. There is no doubt, under the authorities, jitney bus proprietors are common carriers of passengers and this is clearly right on principle. (Notes Anno. Cases 1917C, pages 1051 and 1060.) It is likewise clear, under the authorities and on principle, taxicab proprietors are common carriers. Boland v. Gay, 201 Ill. App. 359; Todd v. Chicago City Ry. Co., 197 Ill. App. 544; Note Anno. Cases 1916B, p. 767; Terminal Taxicab Co. v. Kutz, 241 U. S. 252; Anno. Cases 1916D, p. 765; Carlton v. Bondar, 118 Va. 521; 4 Amer. Law Reports 480 and notes on pages 1499 and 1509.

Rayle Brothers was a partnership, consisting of James, Alfred and Asa Rayle. Their place of business was at No. 18 Franklin St., and on its front was a sign “Rayle Brothers, Garage and Storage, Telephone 525.” Their letterheads and billheads read, “Rayle Brothers, Auto Livery, Storage and Washing.” They advertised as “Rayle Brothers, Taxi, Telephone No. 1964.” Their advertisement stated “always at your service.” They applied to the city clerk of Danville and received a license to run a taxicab. The evidence shows they had six cars that were used in their business and that each of the brothers had a private car which was used with the other six at funerals, and that nearly half their business was furnishing cars at funerals. They had in their employ five or six drivers. The drivers drove in turns except where the call was for a particular driver. The business all came through the office at their place of business, by persons coming there or calling by telephone. They had no cab stands around the city, made no regular trips to depots or hotels, their employees were instructed to solicit no business outside, and to pick up no passengers at depots, hotels or elsewhere outside the place of business. They made no call for less than fifty cents, and charged seventy-five cents from a hotel to a depot. There were a few trips outside of town for which there was, a usual charge, but the charges varied with weather and condition of roads. When a car was hired, the person hiring it controlled and directed where it should go, the route to be taken, and how many should go with him. If the caller took others with him, it cost no more as he had hired the car. They wtiuld hire a Vehicle and driver to any one who was sober and decent, if the roads and weather were so they could go.

Whether or not Bayle Brothers were a common farrier was a question of fact to be passed on by the jury under proper instructions. Bare v. American Forwarding Co., 242 Ill. 298, 300; Hinchliffe v. Wenig Teaming Co., 274 Ill. 417, 422.

In passing on the question- of whether the trial court erred in denying appellant’s motion to direct a verdict for single indemnity, this court does not weigh the evidence but only determines whether or not there is any evidence fairly tending to support plaintiff’s cause of action. Balsewicz v. Chicago, B. & Q. R. Co., 240 Ill. 238, 244; Chenoweth v. Burr, 242 Ill. 312, 317.

Whether there was any evidence fairly tending to support the appellee’s cause of action is a question of law. (Voigt v. Anglo-American Provision Co., 202 Ill. 462, 465; Reiter v. Standard Scale & Supply Co., 237 Ill. 374, 380.) We find that there is evidence in the record fairly tending to prove that Bayle Brothers held themselves out as undertaking for hire to carry indiscriminately all persons applying and offering to pay their charges, which differentiates them from livery stable keepers and places them in the same class as coachmen, hackmen and omnibus drivers. .

It is claimed that on the trip in question Dr. Bathbun controlled the automobile and for that reason it was a private bailment. If his control of the automobile is material, it would be sufficient to say that the evidence relative to his driving the car was directly conflicting and presented a question for the jury to determine. As was said in Terminal Taxicab Co. v. Kutz, 241 U. S. 253: “It may be, assumed that a person taking a taxicab at the station would control the whole vehicle both as to contents, direction and time of use,' although not, so far as indicated, in such a sense as to make the driver of the machine his servant, according to familiar distinctions. The last facts, however, appear to be immaterial and in no degree to cast doubt upon the plaintiff’s taxicabs, when employed as above stated, being a public utility by ancient usage and understanding (Munn v. Illinois, 94 U. S. 113, 125), as well as common'carriers by the manifest meaning of the act. ’ ’ The contention that Eayle Brothers limited their business and did not purport to serve all the public is without force. No common carrier serves all the public. His customers are limited by place, requirements, ability to pay and other facts. The public does not mean everybody all the time. Terminal Taxicab Co. v. Kutz, 241 U. S. 252.

Whether the verdict is clearly and manifestly against the weight of the evidence is a question of fact which, being properly presented, it is our duty to determine. (Illinois Cent. R. Co. v. Smith, 208 Ill. 608, 620.) We have carefully weighed the evidence in the record and not only, cannot say the verdict is against the weight of it, but believe the verdict is supported by the evidence.

We have considered all the errors presented relative to the admission and exclusion of evidence, the argument of counsel and the instructions, and finding no reversible error therein the judgment of the circuit court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Waggoner

license: Public Domain

text:
    Frank Haas, Administrator of Estate of Ernest Haas, Deceased, Defendant in Error, v. Walker D. Hines, Director General of Railroads, Plaintiff in Error.
    1. Witnesses, § 209

      —what cross-examination is improper. A question asked on cross-examination of one of the engineers of the railroad train in question, in an action for the death of plaintiff’s intestate, as to what he saw and did was improper, where the witness had only been asked on direct if he saw the accident and how fast the train was going.
    2. Appeal and ebbob, § 1498*—when exclusion of evidence is harmless. Error in the exclusion of evidence was obviated where the witness afterwards was fully interrogated "as to the excluded testimony.
    3. Appeal and ebbob, § 1619*—when error in examining witness is cured. Error, if any, in asking questions which would have been proper only in rebuttal was obviated where, as soon as the fact became apparent, the court sustained the objections.
    4. Municipal cobpobations, § 106*—how ordinances may be proved. Hurd’s Rev. St. 1917, ch. 24, sec. 65 (J. & A. 1337), providing that proof of the date of the publication of an ordinance may be made by the certificate of a clerk, is not exclusive; hence oral testimony was properly admitted.
    5. Municipal cobpobations, § 79*—when ordinances must be published. The provision of Hurd’s Rev. St. 1917, ch. 24, sec. 64 (J. & A. jf 1336), that publication of an ordinance'must be within 30 days after its passage is directory only, the public being protected by the further provision that an ordinance shall not take effect until 10 days after it is published.
    6. Railroads, § 754*—when contributory negligence is question for jury. Where the testimony as to whether plaintiff’s intestate looked and listened for the train in question while he was approaching a crossing in a buggy on a cold day, was such as to support the theory of either side, it was the peculiar province of the jury to decide which was right.
    7. Railroads, § 662*—when reliance on care of railroad is justified. A person driving a buggy approaching a crossing had the right to assume that any passenger train operated within the corporate limits of a village would be run ,at a rate of speed not to exceed 10 miles an hour as provided by an ordinance of such village.
    8. Railroads, § 737

      —when negligence as to speed of train is established. Where the running of a train at 45 or 50 miles an hour within the corporate limits of a village could have been the sole cause of the accident, and therefore established negligence on the part of the railroad company, and where the decedent had a right to assume the train was running at 10 miles an hour, as limited by a village ordinance, the jury might properly have found that due care was used by the decedent, although there was conflict on the question whether decedent and his mother, who had their ears muffled, looked and listened.
    9. Railroads, § 659*—when negligence. is not imputed. The negligence, if any, of a mother who was riding in a buggy driven by her 15-year-old son, and who was killed in the same accident, could not be imputed to the latter, in an action for the benefit of the father.
    10. Railroads, § 659*—when question of imputed negligence may be raised. The question of imputed negligence, if any, of a mother who was riding in a buggy driven by her 15-year-old son could have been raised, had the mother survived and suit been brought for her benefit.
    11. Death, § 67*—when damages are not excessive. $2,500 damages for the death of a 15-year-old boy allowed in an action for the benefit of his father was not excessive but was compensatory only where the boy was an industrious farm hand on the father’s farm.
    Error to the Circuit Court of Vermilion county; the Hon. Augustus A. Partlow, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed October 27, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    H. M. Steely and H. M. Steely, Jr., for plaintiff in error.
    Isaac A. Love and Reuben B. Kilgore, for defendant in error.

      See Illinois Notes Digest, Yols. 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. Presiding Justice Waggoner

delivered the opinion of the court.

On January 24, 1918, Ernest Haas and his mother, Bertha Haas, were struck and killed by a passenger train of the Chicago and Eastern Illinois Railroad Company at a street crossing in Rossville, Illinois. At the time of the accident they were riding in a single-seated buggy with the top up, side curtains on, and drawn by a horse driven by Ernest Haas.

This suit was brought by the administrator of the estate of Ernest Haas to recover damages for the death of said decedent, and a judgment for $2,500 was recovered.

The case was tried on a count in a declaration charging negligence in running a train at a speed of fifty miles an hour in violation of an ordinance of the village of Rossville, limiting the speed of passenger trains to ten miles an hour.

It is insisted, first, that there was error in the admission and exclusion of evidence; second, that the verdict and judgment are against the evidence; third, that the arguments of counsel for defendant in error were improper and prejudicial; fourth, that a verdict should have been directed for the defendant; fifth, that the court erred in refusing and in giving instructions ; and sixth, that the damages are excessive.

,Dennis E. Conley, one of the engineers, was called • by the defendant in error as a witness and asked if he saw the accident and how fast the train was going. On cross-examination he was asked what he saw and what he did. • The court correctly held that such questions were not proper cross-examination. To ask this witness if he saw the accident was merely to identify the transaction, and did not open up the matter the plaintiff in error sought to inquire about. If the holding of the court had been error, it would have been harmless, as plaintiff in error afterwards called this witness and fully interrogated him in reference to all he saw and did. It is also urged that leading questions were asked witnesses Gfeorge Jacobs and Charles . Barnes, but there is nothing remotely approaching an abuse of discretion by the trial court in that respect. On the cross-examination of Elmer Bivens objections were sustained to some questions asked him relative to a written statement he had signed. The statement was afterwards admitted in evidence, and there is no error of which plaintiff in error can now complain. It is further urged that questions were asked the witnesses Elmer Montgomery and Elmer Bivins which would have been proper only in rebuttal, but the court, as soon as that fact became apparent, sustained the objections, excluded the evidence, and thereby obviated the error if any had been made. It is further claimed the court erroneóusly admitted an ordinance of the village of Bossville in evidence, for the reason that there was no certificate of the village clerk that such ordinance was published in thirty days after its passage. The ordinance was in pamphlet form. Dr. E. W. Fithian, who was the village clerk in the year 1911, testified that the pamphlet was published in the year 1911 and within thirty days after its passage. Sections sixty-four and sixty-five, Hurd’s Revised Statutes 1917 (J. & A. 1336, 1337), provide for the publication and proof of ordinances. The proof of the date of the publication of an ordinance, by the certificate of a clerk, as provided in said section sixty-five is not the exclusive and only method of making such proof. It “may be” so proven, are the words of the statute, and to hold that to be the only way such proof could be made would be error. Such provision of the statute that the publication must be in thirty days is directory only and the public is protected by the further provision that an ordinance shall not take effect until ten days after it is published. Standard v. Village of Industry, 55 Ill. App. 523, 525, 526.

Plaintiff in error argues that the verdict and judgment are against the evidence.. The train in question was a fast passenger train of twelve coaches and two engines. The head engineer, Dennis E. Conley, testified that as he approached the crossing where the accident occurred, the train was running forty-five or fifty miles an hour. The ordinance admitted in evidence limited the speed of passenger trains to ten miles an hour. Negligence, on the part of plaintiff in error, is therefore clearly proven. But it is claimed that the defendant in error’s intestate was not in the exercise of due care and caution for his own safety. The evidence shows that it was a cold day, with snow on the ground, and that defendant in error’s intestate and his mother were riding in a buggy with the top up, side curtains on, and with their heads and ears muffled. They approached the crossing about 2:40 o ’clock in the afternoon. There is a small hill on Henderson avenue east of its intersection with the railroad where the accident occurred. A number, of boys were coasting on the hill and saw the accident. These boys, people living near by, and the train crew, were the principal witnesses. Defendant in error called sixteen witnesses and plaintiff in error twenty-two. The evidence of the defendant in error tends to prove that as the occupants of the buggy approached the crossing, the horse trotted down the hill, stopped on the right-of way; that both Ernest Haas and his mother said “Hello” to the witness Elmer Bivins, who was leaning against a post on the right of way taking snow out of his shoes, and asked him if a train was coming; that the witness said “No”; that they looked out, pulled the side curtains back so they could see up and down the track; that they then drove on, the horse walked upon the track, and they were struck by the train and killed.

The evidence of the plaintiff in error tends to show that Ernest Haas and his mother did not stop or listen but drove on the track without looking or speaking to the witness Elmer Bivins; that there were no obstructions ; that if they had looked they could have seen the train; that the bell on the engine was ringing; that the whistle was sounded; that the train made a loud roar; that if they had listened they could have heard it, and that they had their heads and ears muffled so they did not hear.

There is ample evidence in the record to support the theory of either of the parties to this suit, and under such circumstances it was the peculiar province of the jury to decide which is right. The trial judge has approved the verdict by denying a new trial, and we cannot say the verdict is clearly and manifestly against the weight of the evidence, which we would have to do in order to set it aside. Bradley v. Palmer, 193 Ill. 15, 88-90; City of Pana v. Baldwin, 265 Ill. 119, 122.

As Ernest Haas and his mother approached the crossing they had a right to assume that any passenger train operated by the railroad company within the corporate limits of the village of Rossville would be run at a rate of speed not to exceed ten miles an hour as provided by the ordinance. The fact that the train was running forty-five or fifty miles an hour could have been the sole cause of the accident. Under such circumstances the excessive speed would establish negligence on the part of the plaintiff in error, while on the other hand the decedent, having a right to assume the train was running at ten miles an hour, may have very properly been found by the jury to have been in the exercise of due care. The assumption made by the plaintiff in error that the decedent did not look for the train because if he had done so he would have seen it and not have crossed the track is, under the circumstances, unwarranted for the reason that it is as consistent to assume that the jury found from the evidence that the decedent did see the train and thought, as he had a right to, that it was running at a rate of speed not to exceed ten miles an"hour and that he could safely cross the track. The law gave the decedent the right to assume the speed ordinance would be obeyed. Dukeman v. Cleveland, C., C. & St. L. Ry. Co., 237 Ill. 104, 107-108; Speiser v. Cleveland, C., C. & St. L. Ry. Co., 214 Ill. App. 656.

The contention that the arguments before the jury of counsel for defendant in error were improper and prejudicial is of little importance. We have considered the matter and find that the only objection made was sustained and the remarks objected to were withdrawn.. There was no error on any ruling in this respect.

What we have said above, in reference to contributory negligence and the weight of the evidence, disposes of the question in regard -to directing a verdict. '

Objections made to instructions given on behalf of defendant in error are of no valid force and not of sufficient importance to justify a discussion. The instructions, as a series, fully cover the case and are correct. The' doctrine of assumed risk has no application in this case .and is confused with the question of contributory negligence. Cleveland, C., C. & St. L. Ry. Co. v. Curtis, 134 Ill. App. 565, 570. There is no question of imputed negligence involved. The son, who was fifteen years old, was driving the horse. His mother’s negligence, if any, could not be imputed to him. Chicago City Ry. Co. v. Wilcox, 138 Ill. 370, 374, 379. The mother was killed in the same accident and this suit is for the benefit of the father. If the mother had survived and suit had been brought for her benefit, then the question of imputed negligence could have been raised.

The claim that the damages are excessive is not tenable. The boy was an industrious farm hand on his father’s farm, and the damages awarded are compensatory only. Trapp v. Rockford Electric Co., 186 Ill. App. 379, 389; Halbert v. Louisville & N. R. Co., 186 Ill. App. 508; Swan v. Boston Store of Chicago, 191 Ill. App. 84; Lilikis v. Bossi, 205 Ill. App. 606, and Eicholtz v. Village of Forest Park, 207 Ill. App. 494.

The record contains no reversible error and the judgment rendered in the circuit court is affirmed.

Affirmed.


text:
    Clarence Nolan, by Martin Nolan, Defendant in Error, v. Illinois Automobile Insurance Exchange, Plaintiff in Error.
    1. Appeal and error, § 426
      —when ruling of court in sustaining demurrer is preserved. Where a demurrer to a special plea was sustained, and the defendant did not plead over, the ruling of the court was preserved for review although no express election to abide by the plea was made, and the record failed to show such election.
    2. Indemnity, § 16*—when actual payment of loss sustained is not required. Under an insurance policy insuring “against loss or expense arising or resulting from lawful claims upon the assured for damages” by reason of the operation of the described automobile, it was not necessary that the • insured, in an action against the insurance company to recover the amount of a judgment rendered against him as the result of injuries • sustained by a third party in a collision with plaintiff’s automobile, should • have actually paid or satisfied the judgment against him before bringing suit against the insurance company.
    Error to the Circuit Court of Vermilion county; the Hon. Aitoustus A. Partlow, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    Livingston & Whitmore, for plaintiff in error.
    David Allison, for defendant in error.

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

   Mr. Presiding Justice Waggoner

delivered the opinion of the court.

Illinois Automobile Insurance Exchange, an association of Bloomington, Illinois, on May 27, 1918, issued a policy of insurance to Clarence Nolan. The policy provides that the^ plaintiff in error agrees to insure and indemnify Clarence Nolan “against loss or expense arising or resulting from lawful claims upon the assured for damages” by reason of the operation of the automobile described, including the defense and cost of suit on account of injury suffered by any person as a result of an accident, in a sum not to exceed $5,000.

The declaration avers that while the policy was in force and on October. 3, 1918, Ernest Miller brought an action against the defendant in error, Clarence Nolan, and recovered a judgment against him for $800 and cost of suit, amounting to $27.10, on account of an automobile driven by defendant in error having collided with a horse and buggy driven by Ernest Miller whereby Miller was injured. Plaintiff in error filed a third special plea to the declaration averring, in such plea, that Clarence Nolan had not paid or satisfied the judgment mentioned or any part thereof; that he had suffered no loss or expense under the terms of the policy; that he was insolvent and had no property out of which said judgment could be satisfied, and that an execution remained in the sheriff’s hands with no levy made on any property. To this plea a demurrer was sustained. The ruling of the court in sustaining the demurrer, denying a motion in .arrest of judgment, and in entering judgment against the plaintiff in error for $827.10 are the only errors assigned on the record. The only point argued is that the contract of indemnity sued on is not a contract of indemnity against liability, but is a contract of indemnity against loss and expense of such liability. It is insisted that no right of action accrues until after Clarence Nolan pays Ernest Miller the judgment recovered and that Nolan has no right to recover $827.10 from plaintiff in error until he (Nolan) has paid such judgment.

It is urged, by defendant in error, that the matter has not been saved for review. When the demurrer to the third plea was sustained it was not necessary that the plaintiff in error should make an express election to abide by the plea and have the record show such an election. The judgment on the demurrer was a final judgment as to that plea unless the court, in the exercise of its discretion, permitted an amendment or granted leave to plead over. Hamlin v. Reynolds, 22 Ill. 207, 209. While the matter is not presented in a lucid style, still from an examination of the record we find that no leave was given to plead over and no pleas were filed subsequent to the ruling on the demurrer. It is true that there is some confusion in the record and that it shows a third amended plea, but this plea was on file prior to the ruling on the demurrer to the third special plea. The confusion is caused by having two pleas, one of which is denominated a third special plea and the other a third amended plea. They are distinct pleas and neither was filed in lieu of the other. Inasmuch as the plaintiff in error did not plead over, or take leave to do so, after the ruling on the demurrer, we hold that it did abide by the third special plea and that the ruling of the court thereon is preserved for review and has not been waived. Whalen v. Muna, 94 Ill. App. 488, 490.

Plaintiff in error in support of its contention that the demurrer to the third plea should have been overruled cites the case of United States Fidelity & Guaranty Co. v. Maryland Casualty Co., 182 Ill. App. 438, 445-446. In that case the policy expressly provided that “nó action shall lie against the company to recover for any loss under this policy unless it shall be brought by the assured for loss actually sustained and paid in money by the assured in satisfaction of a judgment after trial of the issue.” The policy sued on in this action contains no such provision. Many of the authorities cited by plaintiff in error are distinguished on the same ground by our Supreme Court in the ease of Ravenswood Hospital v. Maryland Casualty Co., 280 Ill. 103, 110. While the wording of the policy in this case and the one in the Bavenswood Hospital case are not exactly the same, the principle applied in that case controls here and it was not necessary that defendant in error should have actually paid or satisfied the judgment against him before bringing this action to recover from the plaintiff in error. Ravenswood Hospital v. Maryland Casualty Co., 280 Ill. 103, 110.

The judgment rendered in the circuit court is affirmed.

Affirmed.


text:
    Jennie Hixenbaugh, Appellee, v. Union Central Life Insurance Company of Cincinnati, Ohio, Appellant.
    1. Insurance, § _ 147

      —when time of payment of premium expires. Where the 31 days of grace granted in a life insurance policy for the payment of a premium expired on Sunday and the. insured died on the Monday following, without making payment, the policy was void.
    2. Insurance, § 147*—what statutory provisions do not affect time of payment of premiums. Paragraphs 17 and 211 of chapter 98, Hurd’s Rev. St. 1917, and clause 11, sec. 1, ch. 131 (J. & A. Iflf 7638, 7833, 11102), relating to the extension of time to Monday .where the time expires on Sunday, apply only to negotiable instruments and the construction of statutes and had no application to extending to the following Monday the days of grace for the payment of a life insurance policy premium, which expired on Sunday.
    3. Time, § 2*—when Sunday is excluded in computing time.
      It is doubtful if the general rule excluding Sunday where the last day of a period fixed by a decree, order of court or a statute falls on that day, is now supported by the weight of authority.
    4. Insurance, § 147

      —when Sunday is excluded in computing days of grace. Even it*the rule that when the maturity date falls on Sunday the next day would be allowed for payment, applied to life insurance premiums, that would not extend the days of grace so as to allow payment to be made on a Monday where the last day of grace was Sunday.
    Appeal from the Circuit Court of Vermilion county; the Hon. Augustus A. Partlow, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed.
    Opinion filed October 27, 1920.
    Lindley, Penwell & Lindley, for appellant; Walter C. Lindley, of counsel.
    Oliver Davis Mann, 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.

   Mr. Presiding Justice Waggoner

delivered the opinion of the court.

The only question involved in this case is whether the life insurance policy sued on was in force on the day the insured died, Monday, November 4, 1918. It was issued October 3,1917, and provides that the premium shall be paid annually on October 3, in every year during the life of the insured. The premium for the first year was paid but for the second year had not been paid. The policy further provides that a grace of thirty-one days shall be granted for the payment of any premium after the first. The thirty-first day of grace expired on Sunday, November 3, 1918. Appellee claims that the time in which to pay the premium was, under the law, extended until the Monday following and that the insured having died on that day no forfeiture took place and the beneficiary is entitled to recover in this case. Appellant claims that the fact that the thirty-first day of grace fell on Sunday did not, under the law, extend the time of payment until the day following. Appellee relies upon paragraphs seventeen and two hundred and eleven of chapter ninety-eight, Hurd’s Revised Statutes 1917 (J. & A. Iflf 7638, 7833), and on the eleventh clause of section one of chapter one hundred and thirty-one of the same statute (J. & A. ff 11102). The provisions of the statute cited, as their reading discloses, apply only to negotiable instruments and to the construction of statutes, and, for that reason, have no application to this ease. Like statutes were similarly construed in Geneva Cooperage Co. v. Brown, 124 Ky. 16, 24-25, 124 Am. St. Rep. 388, 392; and Upton v. Travelers’ Ins. Co., 179 Cal. 727, 2 Am. Law Rep. 1597, 1599. While appellee in her replication "expressly relies upon the statute as extending the time for the payment of the premium so as to include Monday, yet in her brief, filed in this case, says that the time was extended by operation of law. It is, of course, true that Sunday is a nonjudicial day, and from that fact it follows, as a general rule, that if a period of time fixed by a decree, order of court or a statute for an act to be accomplished ends on Sunday, then that day is to be excluded and the following day allowed for the accomplishment of such act. See notes in 78 Am. St. Rep. 377-380, and 32 Ann. Cases 1036-1037. This general rule is given a much wider application by some courts and extended tti the time for performing or tendering performance of a contract. 38 Cyc. 329-330, note 46, in which is cited, among other cases, Northey v. Bankers’ Life Ass’n, 110 Cal. 547; and Hammond v. American Mut. Life Ins. Co., 10 Gray (Mass.) 306, cited and relied on by appellee. The statutes of both Massachusetts and California make it illegal to perform a contract on Sunday.

The common law, as adopted in Illinois, does not prohibit a citizen from pursuing his ordinary labor ón Sunday, nor fis a contract void because executed on that day. Eden v. People, 161 Ill. 296, 300. It is clearly apparent that the Massachusetts and California cases, cited by appellant, being based on statutes that are at variance with the common law as adopted in this State cannot control this case.

At common law, and in the absence of a statute to the contrary, a contract calling for performance on Sunday is not void, and if the act can be lawfully performed on that day it is no excuse for nonperformance that it was covenanted to be done on Sunday. Amis v. Kyle, 2 Yerg. (Tenn.) 31, 24 Am. Dec. 463; and 38 Cyc. 329, note 44. It has been held that the exercise of an option which matures on a holiday cannot be lawfully made on the succeeding day where the statute makes no provision for the suspension of general business on that day. Page v. Shainwald, 169 N. Y. 246, 57 L. R. A. 173, and 25 Ruling Case Law 1434.

Section two hundred and sixty-one of the Criminal Code of Illinois (J. & A. ft 3948), has been construed as merely prohibiting labor and amusements on Sunday which disturb the peace and good order of society. Richmond v. Moore, 107 Ill. 429; and Johnson v. People, 42 Ill. App. 594. The contract in question could have been lawfully performed on Sunday, and there is no legal reason for giving an additional day for its performance.

It is doubtful if the general rule excluding Sunday where the last day of a period fixed by statute falls on that day is now supported by the weight of authority. It seems that the weight of authority is that when an act is to be done within a time fixed by statute, and the last day thereof falls on a Sunday, that day will not be excluded unless a different rule for computing the time is provided by statute. See notes in 7 Ann. Cases 325-327; 20 Ann. Cases 1318-1319; and Ann. Cases 1917 E 934-947. In Illinois it is certain that the authority for excluding Sunday in comp" jg statutory periods, when the last day falls on Sunday, is based on clause eleven of section one of chapter one hundred and thirty-one of the statute (J. & A. |f 11102).

The case of United States Life Ins. Co. v. Ross, 57 Ill. App. 98, cited by appellee, was reversed by the Supreme Court. See case of the same title, 159 Ill. 476. The case of United Cigar Stores Co. v. WorthGyles Grain Co., 212 Ill. App. 26, also cited-by appellee, is not in point. In that case the court held that where a tenant did not move on Sunday (the day the lease expired), but waited until Monday following, he could not be punished by being held as a tenant for another year, where neither of the parties intended that he was to be a tenant for another year. The court, expressly recognized the fact that he might have moved on Sunday if such act would not have disturbed the peace and good order of society.

The premium on the policy involved in this case, under the law, could and' should have been paid on Sunday or prior thereto, and the insured was not legally entitled to make such payment on Monday. Upton v. Travelers’ Ins. Co., 179 Cal. 727, 2 Am. Law Rep. 1597, and note on page 1601; Aetna Life Ins. Co. v. Wimberly, 102 Tex. 46, 132 Am. St. Rep. 852; National Mut. Ben. Ass’n v. Miller, 85 Ky. 88; and Hanover Fire Ins. Co. v. Shrader, 89 Tex. 35, 59 Am. St. Rep. 25.

There is a further reason' why appellee cannot recover. Even if the rule applied to this case that when the maturity date fell oh Sunday the next day would be allowed for payment, still that would not extend the days of grace so as to allow a payment to be made on Monday when the last day of grace was Sunday. Daniel, in his work on Negotiable Instruments (6th Ed.), volume 1, page 700, section 627, says: “There is a peculiarity about the calculation of grace which denotes its -origin as arising from indulgence. ■ If a bill or note without grace, or any noncommercial instrument for payment of money, falls due on a Sunday or a legal holiday, it is not payable until the next regular business day, for the payor is not compellable by law to pay on the exact day named, and the next day is the first day that the creditor can demand payment. But the debtor cannot require the creditor to extend his indulgence beyond three calendar days; and, therefore, when grace on a bill or note entitled to it expires on a Sunday or other nonbusiness day, the bill or note would fall due on the day preceding. Thus, if grace expired on Sunday it would fall due on Saturday; and if a holiday, such as Christmas day, fell on the Saturday before the Sunday of its maturity, it would fall due on the Friday preceding. The latest business day within or before the period of grace is the day of payment even though all grace be excluded.- If a holiday or Sunday intervenes or is the nominal day of grace, it is counted as one of the days of grace. Courts take judicial notice of the almanac and therefore of the dates on which Sunday falls. ’ ’

The judgment of the circuit court is reversed.

Judgment reversed.


text:
    E. S. Brown and B. H. Lawson, trading as Brown and Lawson, Appellees, v. David Ellis, Com’r of Highways, Appellant.
    1. Township organization, § 35

      —how judgment may he paid. Taxes collected for road and bridge purposes in a town or road district for the current year of 1920, or any succeeding year, were legally applicable to the payment of a judgment recorded against such town in 1916.
    2. Mandamus, § 76*—what defense is not available to enforcement- of judgment. A commissioner of highways of a town could not, in mandamus directing the payment- of a judgment recovered against the town in 1916 and to levy a tax in the event of there not being sufficient funds on hand, go behind "the judgment and question the sufficiency of the cause of action on which it was based.
    3. Roads and bridges, § 299*—what taxes may he levied. The power of highway commissioners to levy a tax to pay a judgment against the town would be implied from the power to incur the debt unless there is an express statute prohibiting it.
    Appeal from the Circuit Court of Cumberland county; the Hon. Augustus A. Partlow, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    Emery Andrews and B. Gr. Beal, for appellant.
    Edward O. Craig, Donald B. Craig, James W. Craig, Jr., Fred H. Kelly and James Craig Van Meter, for appellees.

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

   Mr. Presiding Justice Waggoner

delivered the opinion of the court.

Appellees, Brown and Lawson, on October 25, 1916, obtained a judgment against the Sole Commissioner of Highways of the Town of Neoga, Cumberland county, Illinois, in the circuit court of that county, for one hundred and thirty-three* dollars and seventy-three cents and cost. The judgment was not paid, and on February 25,1918, appellees filed a petition for a writ of mandamus directing the payment of the judgment, and in the event of there not being sufficient funds with which to make such payment, then to levy a tax with which to pay the same. A demurrer was interposed to such petition and overruled. Appellant elected to stand by the demurrer. Judgment was rendered in favor of appellees and a writ of mandamus was awarded.

Appellant and appellees agree, and so state in their briefs, that the only question involved in this appeal is whether or not taxes collected for road and bridge purposes in a town or road district for the current year of 1920, or any succeeding year, are legally applicable to the payment of a judgment recovered against such town in the year 1916.

Appellant contends that section fifty-six, chapter one hundred and twenty-one, Hurd’s Revised Statutes 1915 [Callaghan’s 1916 Stat. [¶] 10000(56)], confers the only power commissioners of highways have to levy taxes; that such section limits the power of the commissioners to a determination annually of the amount necessary for the proper construction, maintenance and repair of roads and bridges in such town for the year for which such taxes are levied; that no power is given to levy taxes for the payment of judgments obtained against the commissioners of highways in years prior to the one for which the taxes are levied, or to pay indebtedness contracted in previous years; that this judgment having been recovered in the year 1916 must be paid out of the money collected in that •year; that there being no funds remaining from the 1916 levy and this proceeding being an attempt to order the judgment paid out of money qolleeted in the year 1920, the judgment of the circuit court awarding a writ of mandamus is erroneous. Appellant relies upon the cases of Highway Com’rs v. Newell, 80 Ill. 587; Brauns v. Town of Peoria, 82 Ill. 11; Adams v. Highway Com’rs, 151 Ill. App. 68; and Challacombe v. Anderson, 173 Ill. App. 144.

In the ease of Highway Com’rs v. Newell, 80 Ill. 587, at page 594, the court said: “The fiscal year seems, from these enactments, to commence with the Tuesday preceding the annual September meeting of the county board. It is at that time they are required to make their estimates and levy of the tax to meet the' expense of keeping in repair the roads and bridges until the corresponding period of the next year. This is the purpose and the extent of the levy they are authorized to make. It then follows that they have no power to legally incur an indebtedness for road and bridge purposes beyond the amount of the taxes already levied for that year. In other words, they cannot expend, lawfully, more than the amount levied for that year.

“Appellees urge, and it seems to be conceded, that, when the commissioners made tlpe levy in 1874, the township owed on account of roads and bridges $1,600, and. the tax then levied amounted to $1,782.39, and they contend, and the court seems to have so held, that $1,600 of this latter amount was necessary to pay and should be paid on the indebtedness incurred prior to the first of September, 1874, and for the payment of which no fund had been provided.

“The tax which was levied in September, 1874, was all of it legally applicable to the payment for labor performed and expenditures made on the roads and bridges after its levy and before the next levy was made, in September, 1875; nor could the tax thus levied and collected be rightfully applied to any other purpose.” .

The foregoing and similar expressions used in the cases above mentioned are the basis of appellant’s contention herein. In construing and applying these cases it must be remembered that the autho.rity arises from what the court decides in reference to the facts before it, and that general expressions must be taken in connection with the facts in the case. Brown v. Coon, 36 Ill. 243, 246; and Mayer v. Erhardt, 88 Ill. 452, 457-458. When the authorities cited are read and properly construed, we do not believe they support appellant’s contention. All that such authorities hold is that a town cannot go in debt except to the extent that it may anticipate the collection of a levy already made, and that a debt, illegal because there were no taxes levied with which to pay it when it was contracted, cannot be collected out of revenues later acquired.

The case at bar is not one of collecting a claim that was illegal when made. The legality of the claim has been adjudicated. This is a suit for the collection of a judgment. If there was no money in the 1916 fund with which to pay the claim when it was made, then under the authority of the cases cited by appellant, he should have presented that defense and prevented appellees from securing a judgment. It is conclusively settled, by the judgment, that the claim upon which it was based was a legal and binding obligation. Appellant cannot in this proceeding go behind the judgment and question the sufficiency of the cause of action upon which it was based. Town of Lyons v. Cooledge, 89 Ill. 529, 535-536; and Kichapoo Drainage District v. City of Mattoon, 284 Ill. 393, 398-400. The legality of the claim having been conclusively established, when it was reduced to a judgment, appellant cannot now be heard to question its legality by claiming that there are no funds of the levy for the year 1916 out of which it can be paid. The rule established by the cases, relied upon by appellant, is not that the claim must be paid from the 1916 fund, but that it could not be legally contracted if there was no fund out of which to pay it. It being now established that it was legally contracted, its payment cannot be defeated by the commissioners dissipating the fund out of which it should have been paid or by applying such fund to other obligations.

The case of Sullivan v. Highway Com’rs, 114 Ill. 262, is a case where the court necessarily, from the facts before it, took the view we take here and that case fully supports our conclusion.

The judgment rendered against the appellant, being conclusively presumed to be valid and based upon a valid claim, the power to levy a tax to pay such judgment would be implied from the power to incur the debt unless there is an express provision of the statute prohibiting it. Peoria, D. & E. Ry. Co. v. People, 116 Ill. 401, 408; and Spring v. Collector of City of Olney, 78 Ill. 101, 106.

It would be an unwarranted reproach upon our law for us to construe it"so that a town could incur a valid debt upon which a valid judgment could be obtained, and payment then be defeated in the manner appellant seeks to avoid payment of the judgment involved in this case.

The section of the statute and the cases cited by appellant were intended to establish a rule that would prevent commissioners of highways from going in debt and using funds annually levied for purposes other than the annual maintenance of the roads, and not intended to establish a rule by which the payment of a valid claim could be defeated by commissioners of highways wrongfully applying the funds to other purposes or incurring pao re debts in a year than could be paid in such year.

The circuit court did not err in overruling the demurrer, to the petition filed in this case, nor in awarding a writ of mandamus.

Judgment affirmed.


text:
    West Side Bank of Evansville, Administrator of Estate of Charles L. Mallinson, Deceased, Appellee, v. F. J. Parr, Appellant.
    1. Guaranty, § 39

      —when verdict is responsive. In an action to recover the amount of a judgment against plaintiff’s intestate, where it was claimed that defendant had failed to take up a note for $525 which he had guaranteed the decedent should not be required to pay, and the common counts were filed together with a special count describing the note, a general verdict finding the issues for plaintiff with damages at $575 was responsive and would apply to each of the common counts as well as the special count, although the note showed no payment indorsed, and the amount of the note, with interest, would have been $718.56 at the time of the verdict.
    2. Evidence, § 323*—when parol admissible to show matters considered on trial. In an action to recover the amount of a judgment against plaintiff’s intestate, where it was claimed that defendant had failed to take up a note for $625, which he had guaranteed the decedent should not be required to pay, and where the common counts were filed together with a special count describing the note, and there was a general verdict for $575, plaintiff could have shown by parol, if such was the fact, that nothing was considered on the trial other than the note, or that no evidence was offered in support of any count other than the special one. In the absence of such evidence the Appellate Court could not say that the verdict was based solely on the note, as must have been to sustain the judgment.
    3. Action, § 15*—when demand is condition precedent to note. A demand was necessary as a condition precedent to an action on an obligation to pay the note of another before a certain day, the rule being otherwise where a party agrees to pay his own debt on request; such being regarded as an undertaking to pay generally and no special request need be alleged.
    Appeal from the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed.
    Opinion filed October 27, 1920.
    Wiley & Morey, for appellant.
    H. Gr. Morris, for appeHee.

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

   Mr. Presiding Justice Waggoner

delivered the opinion of the court.

E. J. Strader and Charles L. Mallinson entered into an agreement in writing, in which for a consideration therein stated, the former obligated himself to purchase and procure possession of a promissory note for $625, dated May 25, 1914, due six months after date, signed by Charles L. Mallinson, sold by E. J. Strader to the First National Bank of West Salem, Illinois, and to deliver such note to said Mallinson on or before October 1, 1914, and to save and keep him harmless from the payment of the note or any part thereof.

The agreement also contained provisions in reference to another note not material, in this case, for the reason that so far as such last-named note is concerned the agreement was complied with.

Together with this agreement, and the indorsement thereon, was an additional one executed by appellant, under seal, whereby in consideration of the first agreement and for value received he guaranteed the fulfillment of the provisions and agreements therein made by E. J. Strader and in default thereof promised and agreed to pay Charles L. Mallinson on demand after October 1, 1914, the sum of $625, being in full settlement and release of his (appellant’s) liability.

E. J. Strader did not purchase, procure possession of and deliver to Charles L. Mallinson the note in question described in the agreement but the First National Bank of West Salem, Illinois, brought a suit in which, the declaration filed contained a count upon said note in question and the common counts and recovered a judgment against Charles L. Mallinson for $575 and cost.

Charles L. Mallinson paid the judgment so rendered against him and brought .this action in assumpsit against appellant. After the action was begun he departed this life and West Side .Bank of Evansville, as administrator of his estate, was substituted as plaintiff:.

At the close of the evidence the court instructed the jury to return a verdict for the appellee, which was done, and judgment was rendered on such verdict for $591.26 and cost.

Appellee, to maintain its case, offered in evidence the agreement showing the obligation of E. J. Strader and the guarantee of the fulfillment thereof by appellant ; certified copies of the summons, declaration, note and judgment in the case of First National Bank of West Salem v. Charles L. Mallinson, in the circuit court of Edwards county, Illinois, rendered at the November term, 1915, and evidence showing payment of such judgment by Charles L. Mallinson.

The note, described in the first count of the declaration, was for $625 and bore interest at 7 per cent from May 25, 1914. The record does not show the date on which the verdict of the jury was returned but it was at the November term, 1915, which began November 8. The note does not show any payment indorsed thereon and on that day the amount of principal and interest on such note would have been $718.56. The verdict returned found the issues for the plaintiff assessing its damages at $575. This general verdict was responsive and would apply to each of the common counts as well as the special count in the declaration. (Jernberg v. Mix, 199 Ill. 254, 257-258; Southern Ry. Co. v. Drake, 107 Ill. App. 12, 20.) Appellee could have shown by parol, if such was the fact, that nothing was considered on the trial of the case other than the note; or that no evidence was offered in support of any count in the declaration contained, other than the special count on the note in question. (People v. Becker, 253 Ill. 131, 135-136; People v. Wilson, 260 Ill. 145, 148-149.) In the absence of evidence of that kind we cannot say the verdict and judgment were based solely on the note,- as must be in order to furnish evidence upon which the judgment in this case could be maintained.

The obligation of appellant is to pay “on demand after October 1, 1914” and no demand was made before this suit was instituted. Appellee argues that bringing this suit is a sufficient demand.

“When a party agrees to pay his own debt on request, it is regarded as an undertaking to pay generally, and no special request need be alleged. But it is otherwise when he undertakes for a collateral matter, or as a surety for a third person. There, if the agreement be that he will pay on request, the request is parcel of the contract, and must be specially alleged and proved: Devenly v. Welbore, Cro. Eliz. 85; Hill v. Wade, Cro. Jac. 523; Waters v. Bridge, Cro. Jac. 639; Birks v. Trippet, 1 Saund. 32, and note (2); Harwood v. Turberville, 6 Mod. 200; Com. Dig., Pleader, c. 69; Sicklemore v. Thistleton, 6 Mau. & Sel. 9; Carter v. Ring, 3 Camp. 459; Douglass v. Reynolds, Byrne & Co., 7 Pet. (U. S.) 113; 2 Saund. 108, note (3); Lawes’ Pl. 232, 251; 1 Chit. Pl. 363, Ed. of 1837. Here there was no precedent debt or duty upon Nelson. He was a surety, and in becoming so he had a right to make his own terms. The condition of the bond is, that Shumway (a defendant not served), the principal debtor, shall pay on demand. The demand is a parcel of the contract, and is in the nature of a condition precedent to a right of. action on the bond. ” Nelson v. Bostwick, 5 Hill (N. Y.) 37, 40 Am. Dec. 310; 12 Ruling Case Law 1094, par. 47; Botkin v. Livingston, 16 Kan. 39, 41.

In the case of First Nat. Bank of Waterloo v. Story, 200 N. Y. 346, 21 Ann. Cas. 542 and 34 L. R. A. (N. S.) 154, the court quotes with approval what is said in Nelson v. Bostwick, supra. In notes in 21 Ann. Cas. 545 and 34 L. R. A. (N. S.) 154, will be found a number of cases cited supporting the proposition that a demand is necessary as a condition precedent to an action on a promise to pay on demand the debt of another.

In Illinois Surety Co. v. Munro, 289 Ill. 570, 574, the court said: “A guarantor may impose any terms or conditions in (his guaranty which he may choose and will only be liable to the holder according to the terms of the agreement.” According to the terms of appellant’s agreement he is to pay, if at all, “on demand after October 1,1914” and we find as an ultimate fact that suit cannot be maintained against him, on such guarantee, until after a demand has been made subsequent to that date.

The court should have directed a verdict for appellant and not for the appellee.

Judgment reversed.


text:
    Matilda Watts, Administratrix, Defendant in Error, v. Wabash Railway Company, Plaintiff in Error.
    1. Limitation of actions, § 53

      —when suit is commenced. The bringing of a suit is the issuing of the summons, or other process, to bring the defendant into court, and the declaration when filed relates back to the commencement of the suit and thereby prevents the running of the statute of limitations.
    2. Death, $ 30*—when statute of limitations is arrested by bringing of suit. Where an action to recover for death was brought within one year, the declaration which was filed after the year related back to the commencement of the suit and thereby prevented the running of the statute of limitations.
    3. Municipal cobpobations, § 107*—when ordinances are sufficiently proved. Ordinances of a city published in book or pamphlet form, together with the title page reciting as follows: “The Litchfield City Code, comprising the general and special ordinances of the city council. Published by authority of the city council,” etc., offered in evidence, showed the ordinances to be those of the City of Litchfield, Illinois, although it would have been more accurate to use the word “ordinance” instead of “code,” and to have substituted the words “City of Litchfield” instead of the words “city council.” j
    4. Pleading, § 56

      —when allegations of count are immaterial. Where a case was tried on two counts, the allegations of another count were immaterial.
    5. Municipal corporations, § 107*—what is evidence of adoption of ordinances. ' A book or pamphlet containing ordinances and purporting to be published by authority of the city council is evidence of the passage and legal publication of the ordinances contained in it, as of the dates mentioned therein.
    6. Municipal corporations, § 79*—when ordinances must be published. Paragraph 64, ch. 24, Hurd’s Rev. St. 1917 (J. & A. If 1336), relating to the publication of city ordinances, is directory only and the public is protected by the provision that ordinances shall not take effect until 10 days after publication.
    7. Railroads, § 859*—when ordinance is admissible in evidence. An ordinance requiring a railroad company to obey it up to the point where its trains emerge from the limits of the city is a different thing from giving it extraterritorial effect; and such an ordinance was admissible where, if the collision was outside the city limits, it was not more than 20 or 30 ,feet outside.
    8. Appeal and error, § 1468*—when admission of evidence is harmless. Where one count in an action against a railway for causing death, declared on the statute imposing a duty to ring a bell or sound a whistle, and it was conceded that no bell was rung or whistle sounded, and the verdict was on that count and on another based on a' city ordinance imposing a like duty, any error in reference to the admission of such ordinance was harmless.
    / 9. Appeal and error, § 1523*—when error in giving instruction is harmless. Recognizing the rule that after defects in an instruction have been pointed out by the Supreme Court it should not be again given, although it may not have been sufficient ground for reversal in the particular case, the giving of an instruction like one so condemned was not ground of reversible error under the facts of an action against a railroad for causing death.
    10. Railroads, § 889*—what is effect of instruction defining due care. Describing due care “while attempting to pass over the railway crossing” in question referred to the whole transaction and covered the time at and immediately before the injury, particularly in view of an instruction given for defendant especially covering its contention that the instruction complained of limited due care to the exact moment of the injury.
    11. Railroads, § 884*—when contributory negligence is question for jury. Failure to look and listen before crossing railroad tracks are proper questions for the jury to consider in passing on the question of due care, but such failure is not per se negligence.
    12. Instructions, § 151

      —when refusal of requested instruction is proper. The refusal of a good instruction was not error where fully covered by another instruction given for the complaining party.
    13. Railroads, § 884*—when contributory negligence of person relying on care of railroad is for jury. Where the view of a decedent was obstructed so that the train which struck him could not have been seen until after it passed a southbound freight train, the caboose of which was standing about 150 to 300 feet south of the crossing, the decedent would necessarily be presumed to have been relying on the railway company to give the warnings by bell or whistle required by law; and the question of due care in looking and listening was one of fact for the jury.
    Error to the Circuit Court of Montgomery county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    D. R. Kinder, for plaintiff in error; N. S. Brown and L. H. Strasser, of counsel.
    Lane, Dryer & Brown, for defendant in error.

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

      See Illinois Notes Digest, Veis, 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. Presiding Justice Waggoner

delivered the opinion of the court.

William Watts on July 13, 1916, was riding in an automobile on a public highway going in an easterly direction upon and along the north boundary line of the City of Litchfield, Illinois, and while crossing a track of the Wabash Railway Company was struck by a northbound passenger train. He died the same day as a result of the injuries received.

This action was instituted by Matilda Watts, as administratrix of the. estate of the deceased, filing a praecipe and the clerk, issuing a summons on July 11, 1917, returnable to, the next November term of the circuit court of Montgomery county. Plaintiff in error concedes, in its brief, that the summons was served upon the railway company “prior to the 13th day of July, 1917.” The case was continued at the November term for want of a declaration, and on January 11, 1918, a declaration containing five counts was filed. A demurrer was sustained to the first count and the jury were instructed to disregard the fourth. The case was tried on the second, third and fifth counts of the decíaration. The defendant was found guilty on the second and third counts and a judgment for $1,775 and costs was rendered on the verdict against the railway company.

The second count of the declaration charged negligence in failing to ring a bell or sound a whistle continuously, as the train was approaching a highway crossing, as required by paragraph sixty-eight of chapter one hundred and fourteen of Hurd’s Revised Statutes of 1917 (J. & A. ft 8817). The third count charged negligence in failing to continuously ring the bell on the locomotive engine, while the engine was running in the City of Litchfield, contrary to an ordinance of the city. . Both counts alleged that the decedent was in the exercise of due care for his own safety. As the verdict returned was on the second and third counts, the allegations of the fifth count are immaterial.

Two special pleas were interposed, by the railway company, alleging that William Watts died July 13, 1916, and that'the declaration was not filed in this case until January 11, 1918, being more than a year after his death. A demurrer was sustained to both pleas. Plaintiff in error urges that this suit was not commenced within one year after the death of the decedent as required by section two, chapter seventy of the Revised Statutes (J. & A. If 6185). It bases its contention on the ground that until a declaration has been filed, stating the object and purpose of the suit, an action had not been commenced within the spirit and meaning of the statute, and that since the declaration was filed more than one year after the death of William Watts, it claimed the court erred in sustaining the demurrer.

The bringing of a suit is the issuing of a summons, or other process, to bring a defendant into court. This is one of the most familiar and best-settled rules of the law. (Chicago & N. W. Ry. Co. v. Jenkins, 103 Ill. 588, 594; Collins v. Manville, 170 Ill. 614, 616; Stizel v. Miller, 157 Ill. App. 390, 394; Rich v. Scalio, 115 Ill. App. 166, 167-168.) Under the rule announced in Eylenfeldt v. Illinois Steel Co., 165 Ill. 185, 190, the declaration when filed relates back to the commencement of the suit and thereby prevents the running of the statute of limitations. The demurrers to the pleas of the statute of limitations were properly sustained.

Defendant in error offered in evidence sections six and eight of chapter thirty-eight of an ordinance of the City of Litchfield, published in a book or pamphlet form, together with the title page of such book or pamphlet. Section six, relating to the speed of trains in the city, was excluded on an objection made by plaintiff in error. Section eight, requiring a bell to be rung continuously while the train was passing through the City of Litchfield, was admitted in evidence. Plaintiff in error complains that it does not appear from such title page that the City of Litchfield, referred to, is in Illinois; that the word “code” is used instead of “ordinance,” and that the ordinance should be described as an ordinance of the “City of Litchfield” instead of the ordinances of the “city council.”

The title page of the book is as follows: “The Litchfield City Code, comprising the general and special ordinances of the city council. Published by authority of the city council. Revised and arranged by P. A. Wilhite, City Attorney, Litchfield, Illinois, 1903.”

It is true that a more accurate way to entitle the book would have been to have used the word “ordinance” instead of “code” and to have substituted the words “City of Litchfield” in place of the words “city council.” But we hold that the wording does show the ordinances to be those of the City of Litchfield, Illinois, passed in 1903, by the authority of the city council of that city, and therefore admissible in evidence without further proof. Hensoldt v. Town of Petersburg, 63 Ill. 112, 115; Chicago & Alton R. Co. v. Winters, 65 Ill. App. 435, 441.

By section ten of chapter twenty-four of Hurd’s Revised Statutes of 1917 (J. & A. ft 1280), the correct name of the municipality is “City of Litchfield.” It will be noted that Illinois is no.part of the municipality’s name. The Supreme Court of this State has heretofore taken judicial notice of the location of the City of Litchfield. Linck v. City of Litchfield, 141 Ill. 469, 480-481. Paragraph sixtyrfive of chapter twenty-four of such statute (J. & A. 1337) provides that when published in pamphlet form the ordinances need not be otherwise published. The provision of paragraph sixty-four of the same chapter. (J. & A. 1336), for a publication within one month is directory only. The public is protected by the provision that it shall not take effect until ten days after it is published. (Standard v. Village of Industry, 55 Ill. App. 523, 525-526.) The ordinance was admissible because it was printed in book or pamphlet form and purported to be published by authority of the city council. The statute makes such printed book evidence of the passage and legal publication of the ordinances contained in it as of the dates mentioned therein. Illinois Cent. R. Co. v. Warriner, 229 Ill. 91, 94.

It is contended that the ordinance was improperly admitted in evidence because the proof did not show that the deceased was injured within the limits of the City of Litchfield. The highway, on which he was injured, ran east and west along the northern boundary line of the city and the train came from the south through the city over the tracks of the plaintiff in error across the highway in question. The train was within the city limits as it approached the crossing in question where it struck and killed William Watts. It is conceded that the hell on the engine was not ringing nor the whistle blowing as the train came through the city and approaching the crossing where the collision occurred. If the collision was out of the city limits it was not more than twenty or thirty feet outside as the highway in question was the line. The deceased was struck so close to the city limits that, if the ordinance had been observed, ringing of the bell or blowing of the whistle would have given the deceased warning of the approach of the train. It is clear that the ordinance has no extraterritorial effect and we do not hold that its admission in evidence gave it such effect. The ordinance requires the railway company to obey it up to the point where its trains emerge from the limits of the city. That is quite a different thing from giving it extraterritorial effect. Under the ruling in St. Louis & S. Ry. Co. v. Homer, 137 Ill. App. 548, 549-550, section eight relative to the ringing of the bell was properly admitted in evidence. It is further urged, by plaintiff in error, that since section six in reference to speed was excluded, that section eight should also have been excluded. We think that section six was improperly excluded. We are also of the opinion that since the statute declared on, in the second count, imposes a duty to ring the bell or sound the whistle, and since it is conceded that the bell was not rung and the whistle was not sounded, and the verdict having been on the second and third counts, any error in reference to the third count would be harmless as the duty attempted to be shown under the third count by ordinance was imposed under the facts of this case by the second count on the statute. It also follows that plaintiff in error’s instruction number seven was" properly refused.

The second and third instructions, given for defendant in error, are subject to criticism under the authority of-Elgin, Joliet & E. Ry. Co. v. Lawlor, 229 Ill. 621, 630-632. After defects in an instruction have been pointed out by the Supreme Court, it should not be again given, although it may not have been considered sufficient ground for reversing a judgment in the particular case. (People v. Lukoszus, 242 Ill. 101, 109.) Nevertheless, we are constrained to hold under the facts in this case that the giving of these instructions was not reversible error.

Complaint is also made of defendant in error’s fourth instruction on the ground that it limits due care, on the part of deceased, to the exact moment of the injury. It is true that due care must be exercised at and immediately before the injury. (Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544, 551; Bale v. Chicago Junction Ry. Co., 259 Ill. 476, 481.) We do not think a proper construction of this instruction limits the due care of deceased to the exact moment of the injury. The words “while attempting to pass over the railway crossing,” under the case of McNulta v. Lockridge, 137 Ill. 270, 287-288, refer to the whole transaction and cover the time at and immediately before the injury. This construction is undoubtedly correct in view of the fact that the first instruction, given for plaintiff in error, specifically covers the contention now made by it and prevents any misunderstanding or misconstruction of instruction number four.

Defendant in error’s seventh instruction, defining ordinary care, is correct. It is true that plaintiff in error’s fourth refused instruction was held to be a proper one in the case of Chicago & N. W. Ry. Co. v. Hatch, 79 Ill. 137, 139, but that case has been overruled by the case of Chicago, St. L. & P. R. Co. v. Hutchinson, 120 Ill. 587, 592-593, as was noted in Chicago & E. I. R. Co. v. Tilton, 26 Ill. App. 362, 367. Many authorities, to the same effect, are collected in Winn v. Cleveland, C., C. & St. L. Ry. Co., 239 Ill. 132, 139. A failure to look and listen is proper for the jury to consider in passing on the question of due care, but is not per se negligence. This has been so often stated, in the rulings of the courts of this State, that we are at a loss to know why attorneys representing railroad companies cannot comprehend this well-settled principle.

There is no allegation in the pleading and no evidence in the record on which to base plaintiff in error’s fifth refused instruction and under such circumstances no harm could possibly be done by not giving it. Plaintiff in error’s sixth refused instruction is good but was properly refused because fully covere^ by its third instruction which was given.

Plaintiff in error admits, in its brief, that the bell on the engine was not rung and that the whistle was not blown as required by the statute of the State and an ordinance of the City of Litchfield. A case of negligence, against the railway company, therefore stands admitted. It is claimed that deceased was not in the exercise of due care for his own safety, and for that reason the judgment should be reversed. We cannot say that there was no evidence tending to prove due care. It appears that the view of deceased was obstructed so that the train that struck him could not have been seen until after it passed a southbound freight train, the caboose of which was standing about one hundred and fifty to three hundred feet south from the crossing. With this obstructed view the deceased would necessarily be presumed to be relying on the railway company to give the warning by bell or whistle that it failed to give. The verdict is not clearly and manifestly against the weight of the evidence. There is no rule of law to the effect that a failure to look and listen will, under all circumstances, bar a recovery. The question of due care was one of fact for the jury and the verdict being supported by the evidence, the judgment must be affirmed.

Judgment affirmed.


text:
    Edith Franz, Appellee, v. St. Louis, Springfield & Peoria Railroad ,Appellant.
    1. Damages, § 32

      —when instruction is erroneous. An instruction evidently based on the mistaken theory that plaintiff could recover what her husband had expended in and about curing her was erroneous.
    2. Railroads, § 780*—when instruction as to contributory negligence is erroneous. An instruction requiring the exercise of due care “at'the time and place named in the declaration,” which would be while appellee was “riding in said automobile across said railroad at the said crossing on the public street,” did not require the exercise of ordin'ary care at and immediately before the accident, where there was no evidence tending to show a collision while the automobile was crossing the track.
    3. Instructions, § 89*—when instruction as to preponderance of evidence is erroneous. In a collision case in which more witnesses testified for defendant than for plaintiff on disputed points, and the number of witnesses therefore became an important factor, an instruction given for plaintiff on the question of the preponderance of the evidence was improper, which eliminated the question of the number of the witnesses hy words used in the first part and then omitted it from an enumeration of the things the jury were told they should take into consideration.
    4. Appeal and error, § 438*—when objection must be made because of variance. The question of variance between the allegations of the declaration and the evidence offered in support of it cannot be raised for the first time in the Appellate Court.
    Appeal from the Circuit Court of Sangamon county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed and remanded.
    Opinion filed October 27, 1920.
    Graham & Graham, for appellant; George W. Burton, of counsel.
    William E. Fain, for appellee.

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

   Mr. Presiding Justice Waggoner

delivered the opinion of the court.

Appellee brought this action for personal injuries, in the circuit court of Sangamon county, against appellant and recovered a judgment for $3,300.

The injuries were" the result of a collision between an automobile being driven by appellee’s husband, in which she was riding, and an interurban train of appellant at Virden, Illinois.

On the trial of the case the court erroneously permitted a physician to testify that he removed appellee’s breast without proof that there was a necessity for so doing due to an injury received at the time of the accident. The physician testified that the breast was diseased but that the causing factor was problematical; that he did not know whether it was due to trauma or not and that he could not swear it was due to the injury.

The court instructed the jury that if they found for appellee, then in determining the amount of damages she was entitled to recover, they should take into consideration, among other elements recited, such sum or sums of money as she had paid or become liable for, if any, for nursing and medical services because of said injuries.

In order to recover for nursing or medical services appellee must prove that such services were made necessary because of the injuries inflicted by appellant; that she paid or became liable to "pay specific amounts, and that such amounts were the usual and reasonable charges for services of that nature. (Schmitt v. Kurrus, 234 Ill. 578, 581; Amann v. Chicago Consol. Traction Co., 243. Ill. 263, 266.) Her attending physician testified that he was paid $275 for three operations (one of which would be the removal of the breast), but does not say by whom the payment was made. The husband of appellee testified that he paid between $1,100 and $1,200 in and about curing his wife but there is no evidence showing that she paid or became liable to pay anything for nursing or medical services. This instruction was evidently given on the mistaken basis that appellee could recover what her husband had expended. Such is not the law, and the instruction should not have been given. City of Centralia v. Ayres, 133 Ill. App. 290, 294.

The third instruction, given at the instance of appellee, does not require the exercise of ordinary care at and immediately before the accident, but “at the time and place named in the declaration,” which would be while appellee was “riding in said automobile across said railroad at the said crossing on the public street.”

In Bale v. Chicago Junction Ry. Co., 259 Ill. 476, 480-481, it is said: ‘ ‘ The first count of the declaration charged that the defendant propelled certain of its rolling stock upon and over the person of the deceased, ‘who was then and there present upon the said public highway of Wallace street and in the exercise of reasonable care for his own safety. ’ The averment of reasonable care in this count was limited to the time when the deceased was in the place where he was struck by the train, while the contention of the plaintiff in error was that he was guilty of negligence in placing himself in that position when he saw or by the exercise of reasonable' care could have seen the approaching train and avoided placing himself in a position of danger. The instruction did not cover the care of the deceased in going into the dangerous place, but only his care after he had gone there, and was therefore erroneous. Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544. ’ ’ In North Chicago St. R. Co. v. Cossar, 203 Ill. 608, 613, it is said: “In personal injury cases it has been repeatedly"" held by this court that it is improper to give an instruction which limits the question of due care to the conduct of the plaintiff at the time of the injury, regardless of his conduct in placing himself in a place of danger.” See also Chicago, M. & St. P. Ry. Co. v. Halsey, 133 Ill. 248, 254.

This instruction should not have been given even if the accident had occurred at the place designated in the declaration, but there is absolutely no evidence tending to show a collision while the automobile was crossing the track. The automobile did not reach the track, but before doing so wa,s turned south, the direction from which the train was coming, and the first step of the second car in the train and the radiator and left front wheel of the automobile came in contact, either by the automobile running into the train, as contended by appellant, or by the train striking the automobile, as insisted by appellee.

The court, on behalf of appellee, gave an instruction upon .the preponderance of the evidence, in which the jury were told that the preponderance of the evidence “is not necessarily governed by the greater number of witnesses, but you should take into consideration the means of knowledge of such witnesses, their conduct and demeanor in testifying, their interest or lack of interest, if any, in the suit, the probability or improbability of their statements, and the facts and circumstances shown on the trial which might go to determine the weight of their testimony.”

Appellee and one witness testified that the automobile had stopped and that a step of one of the interurban cars hit it. Appellant called five witnesses, who, in addition to three called by appellee, testified that the automobile hit the interurban car.

One of the disputed points in the case was whether or not the servants of appellant gave any warning of the approach of its train to the place of the accident. Appellant called more witnesses who testified that such a warning was given than did appellee to show the contrary.

The burden of proof was on appellee to establish the fact that no warning was given, and the number of witnesses testifying in reference to it was an important factor, on the part of appellant, to be taken into consideration in determining whether or not appellee had done so. This instruction, which eliminates the question of the number of witnesses by words used in the first part of it and then omits it from an- enumeration of the things the jury were told they should take into consideration, ought not to have been given. Lyons v. Joseph T. Ryerson & Son, 242 Ill. 409, 417, and Chicago Union Traction Co. v. Hampe, 228 Ill. 346, 350.

Appellant cannot raise, for the first time in this court, a question of variance between thé allegations of the declaration and the evidence offered in support of it. Such objection should be made a,t the time the evidence is offered otherwise it is waived. Chicago City Ry. Co. v. McClain, 211 Ill. 589, 595; Lake Shore & M. S. Ry. Co. v. Ward, 135 Ill. 511, and Elinois Steel Co. v. Novok, 184 Ill. 501.

For the errors above indicated the judgment of the trial court is reversed and this cause remanded.

Reversed and remcmded.