author: Mr. Justice Taylor

text:
    Joseph Damiani et al., Executors, Appellees, v. Sophie De Trana et al., Appellants.
    Gen. No. 21,858.
    1. Wills, § 393

      —when provision construed as gift to take effect at death of testator. The first part of a clause in a will devised and bequeathed to trustees a certain sum “from all of what I may be possessed at the time of my death,” to be held in trust for the children by the testator’s first wife, and thereafter concluded, “said amount being the capital plus interest and gains made by me on the amount my first wife left to me for said children, at the time of her death.” Held, that the clause was not to be construed as a ratification of an existing trust created by his first wife nor as a gift in prcesenti, but as a gift to take effect at the time of his death, prior to which time no interest could be charged on it.
    2. Wills, § 454*—when will construed as providing for special bequest. Provision of will construed as creating a special bequest taking precedence over a general bequest to testator’s widow of one-third of his whole estate.
    3. Wills—when executors not estopped to file bill to learn meaning of clause. That executors in making their inventory in the Probate Court recited a special bequest as part of the estate does not estop them to file a bill to ascertain the meaning of the clause making such bequest.
    4. Wills, § 435*—when amount of solicitor’s fees is reasonable. On a bill of complaint by executors to construe a will, the amount of solicitor’s fees held reasonable.
    5. Wiils, § 434*—when costs apportioned in suit to construe will. Where a bill of complaint to construe a will is instituted from necessity, the costs, including solicitor’s fees, will be apportioned according to the amounts taken by the different beneficiaries.
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed May 31, 1917.
    Theodore Proulx and Cyrus J. Wood, for appellants.
    Flynn & Lyon, for appellees.

      Thomas B. Lantry, Guardian ad litem.

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

   Mr. Justice Taylor

delivered the opinion of the court.

The bill of complaint in this case was filed by Joseph Damiani, Frank De Trana and Alexander De Trana, as executors and trustees of the last will and testament of Joseph De Trana, deceased, to ascertain the meaning of certain clauses in said will.

The testator, Joseph De Trana, died on February 11, 1913, leaving him surviving, his widow, Sophie De Trana (who was his second wife), and three children (all minors), Joseph De Trana, Albertina De Trana and Rocco De Trana. The mother of the three children was Maud De Trana, the testator’s first wife. The widow and the, three children are the beneficiaries named in the will, and are defendants in this cause. The widow, Sophie De Trana, answered, and Thomas B. Lantry, after being appointed guardian ad litem for the minors, filed an answer submitting their rights to the consideration of the court.

The reason for filing the bill of complaint in this cause is that the fourth and seventh clauses of said will give rise to some ambiguity and some uncertainty of meaning. The fourth clause is as follows:

“From all of what I may be possessed at the time of my death, I give, devise and bequeath to my trustees hereinafter named, and their successors in this trust, the sum of Five Thousand ($5,000) Dollars, in trust, nevertheless, and upon the uses and trusts and for the purpose, viz.: to be held by them for the children of my first wife who are Joseph De Trana, Rockey De Trana and Albertina De Trana, to be divided between them, in equal shares, with the accumulated income thereon if not expended for the purposes hereinafter expressly mentioned, viz.: the shares of the said Joseph and Rockey De Trana, to be paid fio them as soon as they attain majority, and the share of the said Albertina De Trana to be paid to her when she attains the age of twenty-five (25) years. Said amount being the capital plus interest and gains made by me on the amount my first wife left to me for said children, at the time of her death. Said amount will be found either in ready cash or in securities in my vault.”

The seventh clause of said will is as follows:

“I give, devise and bequeath to my wife, Sophie De Trana, one-third (%) of all of my estate, real, personal or mixed, and in addition thereto all of my household furniture with the exception of the articles hereinbefore bequeathed.”

Upon the hearing of the cause in the court below, there was offered in evidence, by the complainants, the will in question; letters testamentary to the executor; the bond of the executors; the account of the executors filed in the Probate Court, approved May 12, 1914, showing the balance on hand to be $9,212.15; the table of heirship; the inventory; the appraisement bill, and letters of guardianship.

The evidence of the appellant, Sophie De Trana, and an agreement of counsel, taken together, show that Maud De Trana, in 1904, received about $800 or $900 from the estate of her mother; that the securities inventoried bear a date subsequent to that of the will; that at the time the will was drafted there was in the safety box of the deceased cash or securities to the amount of $5,000.

The chancellor, in construing the fourth and seventh clauses of the will, found that the testator merely ratified a trust already created by his first wife in favor of his children; that the sum of $5,000 mentioned in the fourth clause was never a part of the- estate of the deceased; that the said clause was, in legal effect, a declaration of trust; that the fund was the capital plus interest and gains made by him on the amount left to him by his first wife for his children; that it bears interest at the rate' of five per cent, per annum from August 24,1907, the date of the will, up to the time of actual payment; that the widow took an undivided one-third of what remained after the payment of the $5,000 and interest.

It is to be observed that the will announces in the first part of the fourth clause that the testator gives, devises and bequeaths to the trustees only from what he may be possessed at the time of his death. The fact that the will states in the latter part of said clause that the $5,000 is the capital plus interest and gains made by him on the amount his first wife left blm for the children, does not in any way change the normal meaning of the words in the first part of said fourth clause. It was, therefore, not a gift in prcesewti, that is, of the date of the will. He undertook to state that at a future uncertain time, the time of his death, there should be taken from what he then possessed at that future time, the sum of $5,000, and that that amount should then be placed in trust for his children. We do not find any justification for the conclusion that the testator merely ratified a trust which had already been created by his first wife. If at the time of his death his estate did not equal $5,000, it could not be claimed that the testator had been guilty of a breach of trust, yet that conclusion would be inevitable if the will is looked upon as a ratification of a trust already in existence.

The property, of course, belonged to the testator, and the bequest was obviously inspired by a sense of what would be fair to the children of his first wife and not by any sense of legal obligation.

As to the seventh clause, we are of the opinion that it means, taken in conjunction with the rest of the will, that the widow shall receive one-third of the whole estate, that is, for example, if the estate equals $9,000 she would be entitled to $3,000, but no part of said $3,000 until there was first paid the $5,000 provided for in the fourth clause; and the reason for that is, a special bequest takes precedence over a general bequest.

Putting the construction upon, the will which we have, it follows that no interest may be charged on the $5,000 prior to the time of the death of the testator.

We dp not find that the record discloses that any competent evidence offered on behalf of appellant was erroneously excluded.

It is claimed by the appellant that as the executors in making their inventory in the Probate Court recited the $5,000 as a part of the testator’s estate, they were estopped from filing the bill of. complaint in this cause. That position is untenable.

As to the amounts which were, allowed for solicitor’s fees, we are of the opinion that they are reasonable.

Inasmuch as this proceeding was instituted, from necessity, to determine the proper meaning of the will in question, we are of the opinion that all the costs, including solicitor’s fees, should be apportioned, according to the amounts taken by the different beneficiaries under the will.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    David T. Alexander, Appellee, v. Munson T. Case, Appellant.
    Gen. No. 21,886.
    (Not to be reported in full.)
    Abstract of the Decision.
    Attorney and client—when attorney may not recover share of fees from another attorney acting for him. An attorney who represents one sued by another attorney for fees, in which, prior to that time, both of such attorneys had claimed an interest, must he considered as having abandoned all right to recover against the latter for any part of such fees.
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and judgment for appellant for costs.
    Opinion filed May 31, 1917.
    Rehearing denied July 9, 1917.
    Statement of the Case.
    Assumpsit by David T. Alexander, plaintiff, against Munson T. Case, defendant, for breach of contract in regard to fees for legal services. From a judgment for plaintiff for $250, defendant appeals.
    Munson T. Case, pro se.

    Fulton & Garey, for appellee; Earl J. Garey, of counsel.
   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Women’s Catholic Order of Foresters, Complainant, v. Kate Heffernan et al., on appeal of Katherine Heffernan (Appellant), John W. Ryan and James E. Ryan (Appellees), Defendants.
    Gen. No. 21,898.
    1. Insurance, § 749

      —what contract of fraternal beneficiary society as to payment of mortuary benefits is not binding. A fraternal beneficiary society incorporated under Hurd’s Rev. St. 1915-1916, ch. 73, p. 1542 (J. & A. 1f 6646 et seq.), cannot make a binding contract that a mortuary benefit shall be payable to a person or class of persons other than those enumerated in the statute.
    2. Insurance, § 810*—when beneficiary cannot take. One who is named as a beneficiary under a certificate of a fraternal beneficiary society and does not come within the classes of persons designated, at the time of the member’s death, by the statute as eligible as beneficiary, cannot take.
    3. Insurance, § 833*—when fund passes to heirs. Where the certificate of a fraternal benefit society names as beneficiary one who, is not eligible under the statute, the fund passes to the heirs.
    4. Insurance, § 717*—when reference must be made to contexts of statute and by-law. .To determine the meaning in a statute and by-law of an insurance order of a term having more than one meaning, reference must be had to the context in which it is used, to the general purpose of the statute and to the purpose of the organization which adopted the by-law.
    5. Insurance, § 811*—what is a “family” within statute and bylaw of fraternal benefit society. “Family” as used in the Fraternal Benefit Society Act (J. & A. If 6646 et seq.), and in the by-laws of an organization organized thereunder, held to mean a collective body, consisting of two or more persons who live together and between whom there are family relations of a domestic character.
    6. Insurance, § 811*—when evidence is sufficient to show that beneficiary is member of family of insured. In an action upon a fraternal benefit society certificate, evidence held to show that the beneficiary was a member of the family of the insured.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and judgment here.
    Opinion filed May 31, 1917.
    Rehearing denied June 11, 1917.

      Charles C. Stilwell, for appellant.
    S. S. Walkowiak, for appellees; O. A. Arnston, of counsel.

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

   Mr. Justice Taylor

delivered the opinion of the court.

This is an appeal from a decree of the lower court, which provided that the proceeds of a fraternal insurance policy issued by the complainant should be paid to the heirs of the insured and not to the appellant, who was the beneficiary designated in the policy itself.

On October 27, 1897, the complainant, a fraternal organization, organized under the laws of the State of Illinois, issued to Winifred Eyan a certificate, in which her mother, Ann Eyan, was named as beneficiary. The latter died some time in March, 1899, and it then became necessary for Winifred Eyan to select another beneficiary. Accordingly, after a conversation with one Nellie J. Stafford, recording secretary of a branch of the complainant, said Nellie J. Stafford wrote a letter to the high secretary of the complainant, and in reply thereto received an answer from the high secretary, which is in part as follows: “You state one of your members wants to have her endowment certificate made payable to a dear friend. You ask if it will be necessary to adopt her. This cannot be done, we could issue a certificate payable to this friend, if they were members of the same family, that is if they resided in the same house. Otherwise we cannot have her certificate made payable to her friend, as it is not legal to do so.”

On February 1, 1905, the complainant issued a new certificate to Winifred Eyan, in which it promised to pay to “Katherine Heffeman, a member of my family, $1,000.00, upon satisfactory evidence of the death of said member, and upon the surrender of this certificate.”

Winifred Ryan died December 31, 1914, and at the date of her death was a member of said complainant organization in good standing. She left her surviving the appellees, John W. Ryan and James E. Ryan, her brothers, her only heirs at law and next of kin.

The bill of complaint in this cause was filed on March 4, 1915, by the complainant, offering to pay into court $1,000, the amount of said certificate, and praying, among other things, that the defendants interplead, in order to determine to whom the proceeds belonged.

On May 3, 1915, Katherine Heffernan answered, .claiming to be the legal holder and lawfully designated beneficiary. On May 14,. 1915, appellees, John W. Ryan and James E. Ryan, answered, claiming that Katherine Heffernan was ineligible as beneficiary, and that they themselves were entitled to the proceeds of the certificate.

On May 14,1915, the complainant paid the fund into court, and on June 5,1915, a decree was entered, finding, among other things, that Katherine Heffernan was not a member of the family of the said Winifred Ryan, and that she was not related to the said Winifred Ryan in any manner whatsoever, and that she was not in any or either of the classes of persons to whom an endowment certificate in the said complainant’s organization could be made payable, in accordance with the constitution of said organization; that the designation of said Katherine Heffernan as beneficiary was null and Void, and that therefore the appellees, John W. Ryan and James E. Ryan, brothers of the deceased, were entitled to the proceeds of said certificate. It was decreed, accordingly, that the funds in the hands of the clerk be paid to appellees, John W. Ryan and James E. Ryan.

The evidence shows that Winifred Ryan, the deceased, upon her mother’s death, over sixteen years ago, and when she, the decedent, was about thirty-three years old, went to live with Katherine Heffernan, appellant. The latter at that time was living with her father and brother, at 1934 Huron street. The- father of Katherine Heffernan died about six years ago, and her brother about two years ago. Throughout the whole period of sixteen years, the two, Katherine Heffernan and Winifred Ryan, the deceased, lived together in the same house. They did their work together, rarely separated, went together “to card .parties, and visiting, and lodge meetings.” They had no housekeeper. During nearly the whole of the last four years prior to her death, Winifred Ryan was under the doctor’s care. The house in which they lived belonged to Katherine Heffernan after the death of her father. The work they did pertained to the making of neckwear. Katherine Heffernan did all the housework herself. They both worked and supported themselves. The witness, Nellie J. Stafford, testified “the two women were dearer than sisters. They went out together. I saw them most every week of my life. Miss Ryan nursed Miss Heffernan when Miss Heffernan was sick.” The witness, Mrs. Frances Shea, testified that she never saw one without the other; that she never saw one of them go out alone. The witness, Mrs. Winifred O’Brien, testified that they were always together; that when Katherine Heffernan was sick Winifred Ryan cared for her as one member of a family would care for another, and Miss Heffernan did the same with Miss Ryan, who was sick many times.

It is claimed by the appellees that Katherine Heffernan and Winifred Ryan were not members of the same family, and that where the beneficiary is not within the class prescribed by the by-laws the designation is void.

The Women’s Catholic Order of Foresters was organized on January 31, A. D. 1894, as a fraternal beneficiary society, under the statutes of this State. (Chapter 73, Fraternal Life, etc., Companies, Hurd’s 1915-1916, p. 1542, J. & A. ¶ 6646 et seq.). The statute provides that “payments of death benefits shall only be paid to the families, heirs, blood relations, affianced husband or affianced wife of, or to persons dependent upon the member,” etc. It follows that the complainant, deriving its power from the statute, could not make a binding contract that a mortuary benefit be payable to a person or class of persons other than such as are enumerated in the statute itself. Alexander v. Parker, 144 Ill. 355. The laws of a fraternal benefit society may be narrower than the statute under which the society was organized, and may exclude some who would otherwise be eligible under the statute. In that case the particular laws of the organization would govern and not the statute, but the organization itself may not increase the number of classes of eligible beneficiaries beyond those prescribed by the statute. Also one who is named as a beneficiary, yet who does not come within the designated classes of eligible beneficiaries at the time of the death of the member, cannot take, and in such a case the fund would go to the member’s heirs at law, who are within the designated classes. Murphy v. Nowak, 223 Ill. 301; Tyler v. Oddfellows’ Mut. Relief Ass’n, 145 Mass. 134.

The question arises whether or not Katherine Heffeman at the time of the death of Winifred Ryan was a member of the family of Winifred Ryan. Katherine Heffernan was described in the certificate as “Katherine Heffernan, a member of my family.” Does the evidence show that Katherine Heffernan was a member of the family of Winifred Ryan? At the time of the attempted change of beneficiaries Katherine Heffernan was living with her father and she was a member of his family, and Winifred Ryan was living with them, and with reason it cannot be said that at that time Katherine Heffernan was a member of the family of Winifred Ryan. There is no doubt that subsequently after the death of the father of Katherine Heffernan, and after the death of her brother, that is during the two years immediately prior to the death of Winifred Ryan, Katherine Heffernan and Winifred Ryan were close friends, and constituted what might be called, in the popular sense, a family.

The word “family” comes, of course, from the latín word “familia,” the definition of which, according to some lexicographers, is “household.” In a limited sense it means father, mother and children. Then again, in a more comprehensive sense, it means a' company of people living together and constituting one household. Sometimes, also, it means all those who are descended from one common progenitor. To determine in what sense it is used in the statute and rules of the complainant organization involved in this cause, it is necessary to consider its context and also to bear in mind the general purpose of the statute and of the complainant organization. The statute itself does not limit the eligible beneficiaries to blood relatives; it allows an affianced wife or husband, a dependent person, or a charitable institution to be named as a beneficiary. Nor do the rules of the complainant limit the beneficiaries to relations. It would seem to be reasonable, therefore, in such a case as the present, to consider the word “family” as meaning a collective body, consisting of two or more persons who live together, and between whom there are family relations of a domestic character. Carmichael v. Northwestern Mut. Ben. Ass’n, 51 Mich. 494. In the latter case an old man and a young woman who were not related, but who lived for many years in the same household, were considered as constituting a family. Applying the suggested principle, we are of the opinion that in the instant case the domestic status of Winifred Ryan and Katherine Heffernan, at the time of the death of Winifred Ryan, was that of a family, and that the lower court erred in decreeing that the fund in question be paid to the heirs at law of Winifred Ryan and not to the appellant. The judgment is reversed, and judgment will be entered in this court in favor of appellant.

Reversed and judgment here.


text:
    William T. Kellogg, Appellant, v. John A. Bickford, Impleaded with, etc., Appellee.
    Gen. No. 21,919.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Bills and notes, § 358

      —when plea is one of want of consideration. Where, in an action on a promissory note, while the first plea charges that the execution of the note was obtained by the use of “fraud and circumvention,” but the plea thereafter stateé in detail a charge of fraud as to the consideration, the issue made up by the plea is, in substance, that it was given without consideration.

      Appeal from the County Court of Cook county; the Hon. S. N. Hooves, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed May 31, 1917.
    Statement of the Case.
    Action by William T. Kellogg, plaintiff, against John A. Bickford, impleaded with, etc., defendant, to recover on a promissory note. From a .verdict and judgment for defendant, plaintiff appeals.
    Cavender & Kaiser, for appellant.
    Beach & Beach, 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 XT, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Taylor

delivered the opinion of the court.

2. Biles and notes, § 462*—when instruction as to lack of fraud in obtaining execution of note is properly refused. Even though, in an action on a note, the plea alleges “fraud and circumvention” in obtaining the note, it is not error to refuse an instruction that there was no fraud or circumvention in obtaining its execution, where the plea is, in substance, that the note was given without consideration, and the jury are instructed that the production of the note makes out a prima facie case for plaintiff, and that he is presumed to be a bona fide holder for a valuable consideration and before maturity.

3. Bills and notes, § 462*—when instructions not erroneously given. Instructions in an action on a promissory note, held not erroneously given.

4. Evidence, § 459*—when evidence of testimony of party in another suit is admissible. Evidence of testimony of what certain witnesses heard one of the parties testify to in the course of another suit is admissible, if germane to the issue.

5. Evidence, § 459 —when transcript of evidence in another action is properly excluded. Refusal to admit in evidence a purported transcript of the evidence given by one of the parties as a witness in another action is not error where the transcript is not in proper form.


text:
    Herbert A. Parkyn, Appellee, v. George R. Turley, Appellant.
    Gen. No. 22,001.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Pledges, § 44

      —when evidence as to oral promise by pledgee to notify pledgor before selling stock is admissible. In an action on the case for the wrongful conversion of certificates of stock deposited as collateral security for the payment of a note, it is not error to permit plaintiff to testify as to an alleged contemporaneous oral promise by defendant to notify him before selling the collateral.
    2. Pledges, § 44*—when trover lies for conversion of collateral. Where the evidence tended to show that collateral deposited to secure the payment of a note was sold shortly after it was received, not pursuant to the terms of the note and though it had not depreciated, and that when a renewal note was executed it recited the same collateral as though it were still on hand, and there was also evidence of a contemporaneous oral agreement to notify the maker of the note before selling the collateral and that such notice was not given, it was held that trover would lie for the conversion of the collateral.

      Appeal from the Superior Court of Cook county; the' Hon. Mabcüs Kavanage, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.

      Certiorari denied, by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed May 31, 1917.
    Rehearing denied June 11, 1917.
    Statement of the Case.
    Action on the case by Herbert A. Parkyn, plaintiff, against George B. Turley and David M. Bell, defendants, for the conversion of certain certificates of stock. Prom a judgment on a verdict for plaintiff for $5,395 and costs against defendant Turley, the latter appeals.
    Fulton, Garey & Deutschman and Frederick A. Bangs, for appellant; Richard H. Colby, of counsel.
    Carnahan, Elsdon & Slusser, for appellee.

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

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

   Mr. Justice Taylor

delivered the opinion of the court.

3. Pledges—when action on the case lies against officer of pledgee selling collateral. Action on the case for the conversion of collateral deposited to secure the payment of a note will lie against one who sold it, though he was not the payee of the note but was an officer of the payee in whose possession the collateral was.

4. Pledges, § 44 —when evidence sufficient to sustain verdict for plaintiff in action for conversion of collateral. In an action to recover for the conversion of collateral deposited to secure the payment of a note, evidence held to support a verdict for plaintiff.

5. Pledges, § 44*—when instructions are correct in action for conversion of collateral. In an action for conversion of pledged collateral, the instructions, considered as a series, held to present the principles of law involved fairly and completely.


author: Mr. Presiding Justice McBride

text:
    Royal L. Hamman, Administrator, Appellee, v. Illinois Central Railroad Company, Appellant.
    (Not to be reported in full.)
    Appeal from the City Court of East St. Louis; the Hon. Robebt H. Elannigan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Royal L. Hamman, administrator of the estate of Philip H. Hamman, deceased, plaintiff, against the Hlinois Central Railroad Company, defendant, to recover damages for the death of plaintiff’s intestate caused by being struck by defendant’s train. From a judgment for plaintiff for $4,000, defendant appeals.
    Kramer, Kramer & Campbell, for appellant; John G. Drennan, of counsel.
    Silas Cook and Louis Beasley, for appellee.

      Abstract of the Decision.
    1. Railboads, § 695

      —when declaration in action for death of person at crossing is sufficient. Declaration alleging that defendant “so carelessly and improperly drove and managed the said locomotive engine and train that by and through the negligent and improper conduct of the defendant * * * the said locomotive engine was then and there pushing said train of cars back in front of said locomotive engine * * *, and did not have any flagman at said crossing, or any switchman or brakeman on the front car of said train,” etc., held to unite several elements as constituting the negligence charged as improperly and carelessly driving and managing the engine and train, and sufficient to sustain a judgment, especially after verdict, in an action to recover for the death of plaintiff’s intestate caused by such negligence charged.
    2. Railboads, § 733*—when evidence is sufficient to show negligence in operation of train over crossing. Evidence held to sustain the charge of defendant’s negligence in running its train with the engine in the rear and with no brakeman upon the rear car or watchman at the crossing where plaintiff’s intestate was struck to guard against possible accidents, notwithstanding there is no law specifically requiring a brakeman or watchman to be so placed.
    3. Railboads, § 709*—when failure to place brakeman on rear car and watchman at crossing considered as bearing on negligence. That there was no brakeman upon the rear car of a train run with the engine in the rear and no watchman at the crossing where plaintiff’s intestate was struck by such train, held to be facts to be considered by the jury with all the other evidence in determining whether or not, under the circumstances, the enginé and cars were driven negligently and carelessly as charged, notwithstanding there may be no law specifically requiring a brakeman and watchman to be so placed.
    4. Railboads, § 783*—when finding as to ringing of bell on engine not disturbed. Where there was sharp conflict of testimony with reference to the ringing of the bell on defendant’s engine at the time of a railroad crossing accident, held that the finding of the jury would not be disturbed.
    5. Railboads, § 752*—when contributory negligence of person killed at crossing is question for jury. Whether a deceased who was struck and killed at a crossing by defendant’s railroad train, which was so elevated that he could by looking have seen the train approaching and avoided the danger, was contributorily negligent in not looking, held to be a question for the jury.

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

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

6. Appeal and error, § 1652 —when erroneous instruction on contributory negligence is cured, by other instructions. An instruction limiting the exercise by the deceased, who was struck and killed by defendant’s railroad train, of the degree of care which an ordinarily prudent person would* have exercised under like circumstances prior to the time of the injury, held, if erroneous as omitting the time immediately prior to the injury, to be cured by other instructions including such prior time.

7. Death, § 73*—when instruction on measure of damages is proper. An instruction that the jury should “assess the plaintiff’s damages at such sum as you believe from the evidence the widow and next of kin have sustained by reason of the death of said deceased, if any,” in an action to recover damages for pecuniary loss to the widow or next of kin by reason of such death, held proper.

8. Railroads, § 772*—when instruction on negligence is properly refused as invading province of jury. Refusal to give an instruction that, as a matter of law, there was no duty on defendant railroad company to have a switchman or brakeman on the front car of a train which was being pushed by an engine at its rear while approaching a public crossing, held not erroneous, as the question was one of fact for the jury.

9. Evidence, § 249*—when booh of ordinances is admissible. A book of city ordinances printed by authority of the city council, held admissible in evidence under the statute.

10. Death, § 67 —when verdict is not excessive. Judgment for $4,000 for death, held not excessive as damages recoverable by the widow and three children of the deceased dependent upon him for support, where he was receiving wages of $2.50 to $3 a day and worked most of the time, and on two trials each jury rendered a verdict for that amount approved by the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Anna Bultz, Plaintiff in Error.
    Jury, § 26

      —when judgment upon oral waiver of trial 6y jury and plea of guilty is erroneous. Judgment in a criminal case, where the defendant waived a trial by jury orally and entered a plea of guilty, that the defendant pay a certain fine and stand committed until same and costs are" paid, held erroneous in ordering such commitment upon a waiver of trial by jury not in writing, and in violation of Hurd’s Rev. St. 1903, ch. 110, sec. 102 (J. & A. jf 4145), providing that no person shaU be imprisoned for nonpayment of a fine except upon conviction by a jury or a waiver of a jury trial in writing.
    Error to the County Court of Saline county; the Hon. Charms D. Stilwell, Judge, presiding. Heard in this court at the October term, 1916.
    Modified and remanded.
    Opinion filed April 13, 1917.
    A. C. Lewis and Capel & Meyer, for plaintiff in error.
    Sam Thompson, for defendant in error.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

It appears from the record in this case that the plaintiff in error was arrested and tried in the County Court of Saline county, Illinois, upon an information for selling liquor in anti-saloon territory, and the record recites as follows: “And now on this day, the 13th day of March A. D. 1916, comes the People of the State of Illinois, by the State’s Attorney, and as well also comes Anna Bultz, the defendant, in her own proper person, attended by her counsel, and the said defendant having been furnished with a list of the witnesses for the prosecution, and also a list of jurors for this term of court, waives a trial by jury orally, and enters her plea of guilty as charged in the first, second and third counts of the information, and after being admonished by the court of the consequences .of such plea she still persists therein. Whereupon it is ordered by the court that said Anna Bultz, defendant, be fined in the sum of three hundred dollars and be confined in the county jail for a period of ninety days, and that she pay the costs of prosecution and that she stand committed to the common jail of this county until the above fine and costs is paid or replevied.” It is urged by counsel for plaintiff in error that the court erred in entering as part of the judgment against the defendant that she be committed to the common jail of Saline county until the fine and all costs are paid or replevied. In the argument -of counsel for plaintiff in error, and also for defendant in error, it is conceded that the plaintiff in error has served her time of imprisonment of ninety days imposed by the sentence, but it is insisted by counsel for plaintiff in error that she is exempt from imprisonment for the payment of the fine because she did not waive a jury trial by executing a formal waiver in writing, and this is the sole question to be determined upon this hearing. The statute provides that: “No person shall be imprisoned for non-payment of a fine or a judgment in any civil, criminal, quasi-criminal or qui tam action, except upon conviction by jury; Provided, that the defendant or defendants in any such action may waive a jury trial by executing a formal waiver in writing; Provided, further, that this provision shall not be construed to apply to fines inflicted for contempt of court; And, provided further, that when such waiver of jury is made, imprisonment may follow judgment of the court without conviction by a jury.” Section 102, ch. 110, Hurd’s Rev. St. 1903 (J. & A. ¶ 4145).

It is apparent from the reading of this record that the plaintiff in error was committed to imprisonment for the nonpayment of a fine, and we think this is in direct violation of the statute above, quoted. The Supreme Court, in commenting upon this statute, says: “The only effect of that statute in cases of this character is to prohibit the imprisonment of the defendant, upon conviction, for nonpayment of a fine, unless he has been found guilty by a jury or has executed a formal waiver, in writing, of a trial by jury and has been found guilty by the court.” Jacobs v. People, 218 Ill. 500. The law before the enactment of this statute was that both parties might waive a jury in such' cases, but the Legislature by this statute said that it should no longer be so, unless the defendant executed a formal waiver in writing. A mischief existed that needed to be remedied and the new legislation in such behalf was directed at the mischief and intended to remedy it. Swan v. Mulherin, 67 Ill. App. 77.

The court had the right to impose a sentence of imprisonment for a violation of this law, and it also had the right to impose a fine for its violation, but the court had no right to require the plaintiff in error to be committed until the fine and costs were paid unless such plaintiff had executed a formal waiver of jury in writing.-

"We are of the opinion that the court erred in committing the plaintiff in error to imprisonment until such fine and costs were paid, and inasmuch as it is conceded that the term of imprisonment imposed by the judgment has been served, it is the order of the court that the judgment so rendered be modified by striking out that part of the sentence providing that she stand committed to the common jail until the fine and costs were paid.

Judgment modified and remanded.


text:
    Matthew Smith et al., Defendants in Error, v. Henry Smith, Executor, et al., Plaintiffs in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Wills, § 49

      —when evidence is sufficient to show testamentary capacity. Finding as to the capacity of the testator in executing the will in question, held not against the manifest weight of the evidence, notwithstanding the evidence consisted mostly of opinions of the witnesses formed from conversations had with the testator at different times and not very much, if any, with reference to business transactions.
    2. Wills, § 114*-—what is not conclusive evidence of undue influence. The fact of inequality of distribution by a testator in his will of his estate is not of itself conclusive evidence of undue influence, but may be considered as a circumstance tending to establish undue influence in connection with the other facts and circumstances proven.

      Error to the Circuit Court of Fayette county; the Hon. William B. Weight, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill by Matthew Smith and others, complainants, against Henry Smith, executor of the estate of Frederick Smith, deceased, and others, defendants, to contest the will of the deceased. From a decree finding that the will in question was not the will of the deceased, defendants bring error.
    Albert & Albert and Arthur Roe, for plaintiffs in error.
    Brown & Burnside, for defendants in error.

      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 McBride

delivered the opinion of the court.

3. Wills, § 196*—when undue influence is question for jury. Whether or not a testator was unduly influenced in the making of his will, held, under the circumstances proven, a question solely for the jury.

4. Wills, § 114 —when evidence sufficient to show undue influence. Evidence held sufficient to sustain a finding that the testator was unduly influenced in making his will.

Boggs, J., dissenting.


text:
    Sue B. Louden and Mildred Louden, Executrices, Plaintiffs in Error, v. Terminal Railroad Association of St. Louis et al., Defendants in Error.
    (Not to he reported in full.)
    Error to the Circuit Court of St. Clair county; the Hon. William B. Wright, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by Sue B. Louden and Mildred Louden, executrices of the estate of Walter S. Louden, deceased, plaintiffs, against the Terminal Railroad Association of St. Louis, Terminal Railroad of East St. Louis and Nathaniel B. Winstanley, defendants, to recover damages for the death of plaintiffs’ intestate from injuries sustained by being struck by a railroad train operated by defendants. From a judgment for defendants, plaintiffs bring error.
    Noleman & Smith, for plaintiffs in error.
    T. M. Pierce and Kramer, Kramer & Campbell, for defendants in error.

      Abstract of the Decision.
    1. Cabriebs, § 480

      —when contributory negligence of passenger alighting from train is question for jury. Whether a passenger on a railroad train was guilty of contributory negligence in getting off the train at a place other than that prepared for his exit, if one had been prepared, whereby he was injured, held to be a question for the jury.
    2. Cabbiebs, § 480*—when contributory negligence in crossing tracks after alighting from train is question for jury. Whether plaintiffs’ intestate was guilty of contributory negligence, after alighting from a train, in walking along and passing over certain railroad tracks at what he must have known was a dangerous place, with his head bowed down and without looking to see if another train was approaching, held to be a question for the jury.
    3. Cabbiebs, § 476*—when evidence is sufficient to show contributory negligence by passenger. ' A finding that plaintiffs’ intestate was guilty of contributory negligence at the time he was killed by defendants’ railroad train, after alighting from another train, held not against the manifest weight of the evidence.
    4. Cabbiebs, § 493*—when instruction on contributory negligence is erroneous because not in conformity with pleading. An instruction, in an action to recover damages for the death of plaintiffs’ intestate from injuries sustained by being run over by defendants’ railroad train after alighting from another train, that plaintiffs could not recover unless it appeared from the evidence that the deceased was in the exercise of ordinary care for his own safety, held erroneous under a declaration charging that the acts of negligence complained of on the part of the defendants were wilful and wanton, and evidence tending to so show.
    5. Cabbiebs, § 493

      —when instruction on contributory negligence is not erroneous because not in conformity with evidence. Where a declaration charged that certain acts of defendants in the operation of their railroad train, whereby plaintiffs’ intestate, a passenger who had,alighted from another train, sustained injuries which resulted in his death, were wilful and wanton, an instruction that the plaintiffs could not recover unless it appeared from the evidence that the intestate was in the exercise of ordinary care for his own safety, held not erroneously given where the evidence did not tend to show such acts were wilful and wanton.

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

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

6. Cabbiebs, § 402*—when negligence in operation of train striking passenger who alighted from another train is not wilful and wanton. Where at the time plaintiffs’ intestate, a passenger who had alighted from a train, was struck, the train which struck him was being operated on a parallel track at a rate of four to six miles an hour, with a brakeman having a lighted lantern on the foremost car and his lantern in a conspicuous place and in accordance with the city ordinances, such operating of the train held not wilful and wanton, notwithstanding the brakeman allowed the train to proceed after he had seen the deceased approaching for some distance before reaching the point where deceased was injured.

7. Cabbiebs, § 402*—when operator of train has right to assume that passenger alighting from another train will not step on tracks. The operator of a railroad train who saw plaintiffs’ intestate, a passenger who had alighted from another train, approaching the track for some distance before reaching the point where the intestate was injured, held to have a right to assume that the intestate would see the train moving and would act as a reasonably prudent man and not step upon the track in front of the train.

8. Cabbiebs, § 493 —when instruction on contributory negligence of passenger struck by another train after alighting is proper. In an action to recover for the death of a passenger who was struck by another train after alighting from the one on which he was passenger, an instruction that if plaintiffs’ intestate had looked and by the exercise of ordinary care could have ascertained the approach of defendants’ train along the track in time to have avoided injury and did not look, plaintiffs could not recover, held proper.


author: Mb. Presiding Justice McBride

text:
    Maunie Banking Company, Appellant, v. John Eplin, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal ajstd ebbob, § 1787

      —when judgment reversed and cause remanded. Where appellee fails to file a brief, the judgment should he reversed pro forma, under Rule 27, and the cause remanded.
    Appeal from the Circuit Court of White county; the Hon. Julius C. Keen, Judge, presiding. Heard in this court át the October term, 1916.
    Reversed pro forma and remanded.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by Maunie Banking Company, plaintiff, against John Eplin, defendant. From a judgment for defendant, plaintiff appeals.
    Noah C. Bainum, for appellant.
    No appearance for appellee.

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

   Mb. Presiding Justice McBride

delivered the opinion of the court.


text:
    O. W. Richardson & Company, Appellant, v. Edward Steinfort and Richard Steinfort, Appellees.
    (Not to be reported in full.)
    Abstract of the Decision.
    Sales, § 157

      —when evidence sufficient to show failure to malee delivery. Evidence held sufficient to warrant the finding that the goods in question sold by plaintiff to defendants were to be delivered at a certain town and were not delivered to the railroad carrier and consigned to defendants unconditionally.
    Appeal from the Circuit Court of Jasper county; the Hon. William B. Weight, Judge, presiding. Heard in this- court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by O. W. Richardson & Company, plaintiff, against Edward Steinfort and Richard Steinfort, defendants, to recover the purchase price of certain rugsT From a judgment for defendants, plaintiff appeals.
    Isley, Jack & Isley, for appellant.
    Davidson & Fithian, for appellees.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.


text:
    Mary Louise Mann, Appellee, v. Supreme Council of Royal Arcanum, Appellant.
    1. Insurance, § 120

      —what construction placed on questions and answers in application. In determining the construction to be given to certain questions and answers contained in the application for life insurance of the insured, held that the language would be strictly construed against the insurer and liberally in favor of the insured, in an action to recover on the policy.
    2. Insurance, § 208*—when whole of statements in contract considered in determining whether warranties or representations. Where there are statements in a contract of life insurance, some of which appear upon their face to be warranties and others representations, effect must be given in the construction of such contract to the whole of the statements in determining whether or not they are intended as warranties or as representations.
    3. Insurance, § 208*—when statement in Ufe poUcy construed as warranty. Only in cases where a policy of life insurance will admit of no other construction will a statement by the insured contained therein be construed as a warranty.
    4. Insurance, § 209*—what is warranty and not representation in application. A statement by the insured in his application for insurance that he warrants the truthfulness of the statements in his application and consents and agrees that any untrue or fraudulent statements or any concealment of facts therein or to or from the medical examiner shall forfeit the rights of himself or his beneficiaries," heirs and all other persons .under his policy, held to be a representation and not a warranty as to such statements in the' application or to the medical examiner.
    5. Insurance, § 663*—when evidence is insufficient to show fraud in application. Evidence held to show that the insured was not guilty of any fraud or misrepresentation in making the statements contained in his application for life insurance.
    Appeal from the City Court of East St. Louis; the Hon. William M. Vandeventer, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    F. H. Bacon and Kramer, Kramer & Campbell, for appellant.
    Dan McGlynn, for appellee.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

The appellee recovered a judgment in the court below for $1,050 and costs, which judgment the appellant seeks by this appeal to reverse.

It appears from the record in this case that on December 28, 1913, Louis Joe Mann made application to appellant for a benefit certificate for the amount of $1,000, in' which he named his wife, the appellee, as beneficiary, and the benefit certificate was issued thereon on January 22, 1914. . The application made by the deceased contained the following clause: “I do hereby warrant the truthfulness of the statements in this application, and consent and agree that any untrue or fraudulent statements or any concealment of facts therein or to or from the medical examiner or my suspension or expulsion from or voluntarily severing my connection with the order shall forfeit the rights of myself and my beneficiaries, heirs, and all other persons claiming under my benefit certificate issued herein.” Accompanying this application was a medical examiner’s certificate which contained the following questions and answers: “Q. Has albumen or sugar ever been found in your urine?” “A. No.” “Q. Have you ever before applied for membership in the Boyal Arcanum?” “A. No.” “Q. Or in any other beneficial society or assessment insurance company?” “A. Yes.” “Q. Or for life insurance in any Insurance Company?” “A. Yes.” “Q. Have you ever been rejected?” “A. No.” At the foot of the medical examiner’s statement, and just above the signature of the applicant, appears the following: “I hereby warrant the truthfulness of all the answers and statements given to the above questions.” An application made by the deceased to the Prudential Insurance Company on about May 7, 1906, contained the following statement, signed by the medical examiner: “On testing his urine I found it loaded with sugar.” Thereupon the following stipulation was entered into between the' appellant and appellee to wit: “It is stipulated in this case that Louis Joe Mann, on or about the 7th day of May, 1906, prior to the time he made application to the defendant herein for insurance, made application to the Prudential Insurance Company of America, at its home office located at Newark, New Jersey, then engaged in the life insurance business, for life insurance in said company; that said application was rejected by said Prudential Insurance Company before he made application to the defendant for the benefit certificate sued upon in this ease, but that the fact of said rejection was not made known to said applicant and he had no knowledge of said rejection at the time he made his said application to the defendant, or at any time thereafter during his lifetime.” Doctor Carr, who made the examination for the Prudential Insurance Company, testified that the Prudential Insurance Company never gave the applicant any knowledge of the analysis made of his urine, and neither did Doctor Carr make known to him the result of the application. He also testified that he made an analysis of the urine and that it contained sugar; also that if that condition existed in a man and some nine years afterwards he died of grippe infection, that the condition as to his urine would not contribute to the death. He further testified that sugar in the urine indicates diabetes and that a man having that trouble is never recommended for insurance. The statement of Doctor Carr to the Prudential Insurance Company made on May 2,1906, contains the following statement: “This young man appears to be in good health, looks well, is actively engaged at the stock yards handling cattle, etc., and I believe he thinks himself in perfect health, but in testing his urine I found it loaded with sugar. The second and third samples showed less than the first, but still quite full. I enclose two reports of chemists. I suggest you P. P. the case for a few weeks. Carr.” It was explained by Doctor Carr that the letters P. P. meant that he recommended that the application be postponed; that he might withdraw the application for a few weeks or few months so that he might apply again, ‘ ‘ and that is how I passed his application after I had made the examination.” It further appears from the evidence that the application certificate and statements certified to by the medical examiner were filed in the secretary’s office and made a part of the contract.

Upon the trial of this case, appropriate pleas and. replications were filed and propositions of law and fact submitted to the trial court, presenting the question as to whether or not the foregoing statement of the deceased in his application, and statements made to the medical examiner, were warranties or mere representations, and the trial court found that they were representations and rendered judgment npon the certificate.

The appellant in its brief says: “The only question to be determined in this case is whether or not the statements contained in the application and answers to the questions propounded by the medical examiner are warranties or mere representations.” And this was the sole question argued by counsel for appellant and appellee herein. It is insisted by counsel for appellant that the statements contained in the application and medical examiner’s certificate were as a matter of law warranties, and that as it has been shown that the deceased had been at one time examined for insurance in the Prudential Insurance Company and not accepted, that his answer to the question, if he had ever made application to any other insurance company and been rejected, was false; also his answer to the question, has albumen or sugar ever been found in his urine, and which he answered “no,” was false, and that as a matter of law these questions and answers were warranties and rendered the policy void. In determining the construction to be given to these statements, it must be borne in mind that the language will be strictly construed against the insurer and liberally in favor of the insured; and further, that where there are statements in a contract, some of which appear upon their face to be warranties, and others representations, that in the construction of this contract effect must be given to the whole of the statements in determining whether or not they are intended as warranties or representations, and only in cases where the policy will admit of no other construction that the statement contained therein will be construed as a warranty. “The doctrine of warranty, in the law of insurance, is one of great rigor and frequently operates very harshly upon the assured, and courts will 'never construe a statement as a warranty unless the language of the policy is so clear as to preclude any other construction.” Spence v. Central Acc. Ins. Co., 236 Ill. 444. The Supreme Court, in passing upon clauses in a policy similar to the one under consideration, says: “It is clear, therefore, the only way in which to give that provision of the policy relating to fraud, concealment and misrepresentation, any effect at all, is by treating the answers in the policy as mere representations, and not warranties.” Continental Life Ins. Co. v. Rogers, 119 Ill. 474. The Supreme Court, in the case of Weisguth v. Supreme Tribe of Ben Hur, 272 Ill. 541, says: “The Rogers case cited and relied upon Fitch v. American Popular Life Ins. Co., 59 N. Y. 557. In that case the policy provided that fraud or intentional misrepresentation vitiated the policy, and that the statements and declarations made in the application, and on the faith of which the policy was issued, were warranties and in all respects true, and that the applicant declared that the answers to the questions annexed, and the written statements in the statement, declaration or warranty, together with the statements made to the examining physician, were warranties correct and true, and that the policy was issued and accepted in entire, unconditional honesty and good faith and with the just intent of scrupulously fulfilling all the conditions and engagements of the contract. It was held that the answers and statements contained in the application were mere representations and not warranties, mainly upon the same ground as the basis of the holding in the Rogers case, supra.”

The statement contained in the application warranting the truthfulness thereof and, providing that any untrue or fraudulent statements therein made, or made to the medical examiner, shall work a forfeiture of the rights of the beneficiaries in the certificate, can in our judgment be given no other effect than that of representations, and the statements in the medical examiner’s certificate must be read in connection with and as a part of the application, and when all taken together provides that if any of the statements are false that it works a forfeiture. If they were intended to be taken as warranties, there was no occasion for inserting the fact that fraudulent or false answers would work a forfeiture. The statements contained in this contract are similar to the statements in the case of Continental Life Ins. Co. v. Rogers, supra, and to the statements contained in the case of Weisguth v. Supreme Tribe of Ben Hur, supra, and these cases are, in our judgment, decisive of the case now under consideration.

Many cases have been referred to by counsel for appellant in which similar clauses have been held to be warranties, but the cases most strongly adhering to the doctrine of making such statements warranties are of other jurisdictions and have not been followed by the Supreme and other courts of this State. It is clear that where a statement is shown to he a warranty and nothing in connection with it showing an intention upon the part of the contracting parties that a forfeiture should be had, if such statements were false then we would agree with counsel that the rule of warranties should be followed, but in a case like the one under consideration, where it necessarily follows from the language used that before such statements can work a forfeiture of the policy that they must be fraudulent, then in our judgment they can only constitute representations. It clearly appears from the evidence and stipulations in this case that the deceased did not know that he had been rejected or that his urine contained albumen, and that he was not guilty of any fraud or misrepresentation in the making of the statements.

We believe that the statements contained in this contract were representations and not warranties, and that the lower court was right in so holding, and the judgment of the lower court is affirmed.

Judgment affirmed.


text:
    Laura Snodgrass, Administratrix, Appellee, v. Bluford Wilson and William Cotter, Receivers, Appellants.
    (Not to be reported in full.)
    Abstract of the Decision.
    I. Railboads, § 738

      —When evidence sufficient to show lack of due care of pedestrian crossing track. Evidence held sufficient to show that plaintiff’s intestate was not at the time he was injured in the exercise of due care for his own safety, where he stood on defendants’ railroad track at a crossing with an unobstructed view of the track for four to six hundred feet, on a clear day, and there were no other trains or unusual noises or things tending to confuse him or cause him to fail to look or listen, and he did not look or listen, and two ordinary steps would have carried him beyond the reach of the train which struck him.

      Appeal from the City Court of Alton; the Hon. James B. Dunnegan, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed with finding of facts.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by Laura Snodgrass, administratrix of the estate of John W. Snodgrass, deceased, plaintiff, against Bluford Wilson and William Cotter, receivers of the Chicago, Peoria & St. Louis Railroad Company, defendants, to recover damages for the death of plaintiff’s intestate from injuries sustained by being struck by a railroad train operated by defendants. From a judgment for plaintiff for $999, defendants appeal.
    H. L. Child and John J. Brenholt, for appellants; P. B. Warren, of counsel.
    William Wilson, for appellee.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

2. Railroads, § 754*—what is not negligence per se of person about to cross track. Failure to look to see if a train is approaching as a person is about to cross a railroad track is not in law negligence per se on the part of such person.

3. Railroads, § 754*—when failure of person about to cross track to look for train is negligence in fact. Failure of a person about to cross a railroad track to look to see if a train is approaching may be negligence in fact if there are no conditions or circumstances which excuse the looking or listening.

4. Negligence, § 250*—when finding as to want of due care disturbed. While a court of appeals should be careful in disturbing verdicts for want of due care upon the part of the person injured, yet when it appears from the evidence that there are no circumstances or surroundings of any kind that would excuse the looking or listening, and that to have looked or listened the injury could have been avoided, the court will hold that such failure to look or listen shows a want of due care.


text:
    James C. Morris, Appellee, v. Taylor Coal Company, Appellant.
    1. Workmen’s Compensation Act, § 12

      —what is effect of plea of general issue in action at common law. In an action by a mine employee against his employer for failure of the. employer to furnish the plaintiff a safe place in which to work, a plea of the general issue held to impliedly concede that defendant was not operating under the Workmen’s Compensation Act.
    2. Appeal and error, § 369*—when objection that action should have been brought under Workmen’s Compensation Act may not be raised. Where an employer, against whom an employee has brought an action at common law for failure of the employer to furnish the plaintiff a safe place in which to work, went to trial upon a plea of not guilty and offered instructions upon that theory, without raising the question as to the right of that court to proceed with such trial, held that such employer upon review after an adverse finding upon the issues could not raise the question that the action should have been brought under the Workmen’s Compensation Act.
    3. Mines and minerals, § 176

      —when evidence is insufficient to show knowledge by mine operator of dangerous condition of roof. Evidence held not to show that defendant or its officers knew that certain rock in defendant’s mine which afterwards fell and injured plaintiff was loose and liable to fall any time before it did fall, or that defendant by the exercise of reasonable care could have known it was loose or that conditions were such as to require defendant to prop and secure the roof where such rock was.
    4. Mines and minerals, § 89*—what is duty of coal mine operator as to furnishing miner with props and timbers. It is the duty of the coal operator under Rev. St. ch. 93, sec. 20, subdiv. 6 (J. & A. If 7494), providing as to duties of mine manager, to furnish the miner with props and timbers sufficient to secure the miner’s room and make the same safe.
    5. Mines and minerals, § 89

      —what is duty of miner as to propping and securing working room. It is the duty of a miner under Rev. St. ch. 93, sec. 23, subdiv. (c) (J. & A. If 7497), providing as to duties of miners, to properly prop and secure the room in which he works.
    Appeal from the Circuit Court of Williamson county; the Hon. DeWitt T. Hartwell, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 13, 1917.
    Denison & Spiller, for appellant.
    Pillow & Stone, 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, Mid Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.

The appellee recovered a judgment against appellant for $370 and costs, to reverse which this appeal is prosecuted.

This was an action at common law for negligence of the defendant in failing to furnish plaintiff with a reasonably safe place to work. It appears from the record that the appellant had filed a written notice with the Industrial Board by which it elected not to accept the provisions of the Compensation Act, but appellee failed to prove that a notice of this had been posted at the mine, and appellant has devoted much of its brief and argument to the question of the right of appellee to recover herein because of its failure to prove the posting of said notice or the service thereof, as provided by statute. The posting of this notice, or service thereof, is not made a condition precedent to the bringing of this action, but is only a means of showing that appellant had elected not to come under the provisions of the Compensation Act. The matter relied upon for a recovery by appellee in this case is the negligence of the defendant as charged in the declaration, and it seems to us that' this is only a matter of inducement and is not in fact traversed by the plea filed, and by pleading the general issue the appellant impliedly concedes that it was not operating its mine under the Compensation Law. Carlson v. Johnson, 263 Ill. 556. Pennsylvania Co. v. Chapman, 220 Ill. 428. Independent of this, the appellant upon the trial of this case insisted that it was not guilty of negligence as charged in the declaration and offered instructions upon that theory, and failed to properly raise the question as to the right of the Circuit Court to proceed with this trial. If it is true that the appellant was under the Compensation Act, then the Circuit Court had no jurisdiction to try the cause, but it should have been submitted to another tribunal. The appellant has elected to take advantage of defenses that would not be permissible, if it was operating under the Compensation Act, and we see no reason for changing our views as expressed in the case of Hughes v. Eldorado Coal & Mining Co., 197 Ill. App. 259. Since the decision of that case our attention has been called to a recent decision of the Supreme Court of Kansas, where a similar statute was under consideration. There the court sustained the action notwithstanding the failure to prove the matters required by statute. Frere v. Missouri, K. & T. Ry. Co., 94 Kan. 57, 145 Pac. 864. We believe that it would be unjust and unreasonable to permit a defendant to take advantage of all defenses that are permissible under a common-law action and then allow him, after these issues had been found adversely, to say that the suit had been brought in the wrong forum and that no liability existed at common law, or under the statute, except under the Compensation Act, where the court had jurisdiction of the subject-matter as the suit was tried.

After a careful reading of this record, we are of the opinion that the appellant was not guilty of the negligent act charged and that it was error to render judgment in favor of the appellee herein. While it is true that appellant’s failure to operate its mine under the Compensation Law deprives it of the defenses of assumed risk, contributory negligence or negligence of a fellow-servant, yet before the plaintiff can recover it is necessary to prove that the defendant has been guilty of the negligence charged in the declaration. The declaration in this case charges that it was the duty of defendant to exercise reasonable care to provide him a reasonably safe place in which to pass and work. That appellant failed in that behalf and carelessly and negligently furnished him an unsafe place in this, that the roof of said room was in a falling, unpropped and unstable condition, and large pieces of coal, slate and dirt were liable to fall therefrom at any time and to strike appellee and injure bfm while engaged in the performance of such work. That appellant knew thereof or could have known by the exercise of reasonable care. That on the day aforesaid and while in the performance of his duties, by reason and on account of the negligence of appellant, a large piece of coal fell from the roof of said room and struck appellee on the hack and right side and right hip and injured him.

It appears from the evidence that the appellee was engaged at work in a room known as ro.om No. 40, off the second south entry of appellant’s mine, and that he had driven this room in some fifty or sixty feet and that he had performed all the work himself, and that this room was his working place. It further appears that about two months prior to this there had been a fall in this room which appellee had cleaned up, and that there had from time to time been small falls in the room, sometimes a little and sometimes more,’ and would run from three or four little pieces down to the size of your hand, at other times twenty-five to fifty pound chunks, maybe three or four shovelfuls. It further appears from the testimony of the appellee that on the morning of the day he was injured, and before he began his work, that he examined the roof of this room and the rock that fell, and says: “Had examined this rock that fell on me that same morning before it fell. Had tested it with a pick; took a pick and sounded the roof and that morning when I sounded it, if this piece was loose, I did not find it. When I did the testing I was standing on the rock that this rock fell upon. With my twenty years’ experience as a practical coal miner, and applying the usual test, I did not find anything wrong with the rock that afterwards fell and struck me. One of the practical ways recognized by practical coal miners, to test whether or not a roof is safe or dangerous, is to tap the roof with a pick or some instrument of that kind. I went to work on the morning I was hurt at the regular time, maybe a little earlier. Was there about 7 or 7:30. Saw mine examiner’s marks in the room. The company had a licensed mine examiner in its employ at that time; he went in to examine the room to see whether or not it was in a dangerous condition. Saw the date marks of the examination at the face of the room; they were fifty or sixty feet beyond where the rock fell; they were in my usual working place. They were supposed to be of the date of the examination. The figures I saw were a five and six, I believe; that meant that it had been examined the night before; those figures were the date of the month and the day, and were made in chalk marks.” While the charge in the declaration is in general terms, the evidence as to the negligence that constituted the approximate cause of the injury was as to the condition of the piece of rock or soapstone that fell from the roof of the room and injured appellee. The charge in the declaration is that appellant knew the condition of this roof, or by the exercise of reasonable care could have known it, but the evidence of appellee is that the roof, so far as he could determine and ascertain by the usual test, was solid and not dangerous and not liable to fall. It also appears from his statement that the mine examiner’s marks were in the room showing that it had been examined the night before. It further appears from the evidence that appellee was an experienced miner and was well acquainted with the usual tests applied in determining whether or not a roof was safe. He applied these tests and found the roof, at the point complained of, to be in a safe condition. If he as an experienced miner was unable to find that the roof was in a loose and dangerous condition, we are unable to see how it can be said that the appellant was negligent in not finding it. As we understand the law, it is the duty of the coal operator to furnish the miner with props and timbers sufficient to secure his room and make the same safe, and that it is the duty of the miner to properly prop and secure such place. Subdivision 6 of section 20, ch. 93, Hurd’s Rev. St. (J. & A. 7494) provides, with reference to the duties of the mine manager: “He shall provide a sufficient number of props, caps and timbers, when demanded, delivered on the miners’ cars at the usual place, in suitable lengths and dimensions for the securing of the roof by the miners.” Subdivision (c) of section 23, of the same chapter (J. & A. 7497) provides: “Every miner shall sound and thoroughly examine the roof of his working place before commencing work, and if he finds loose rock or other dangerous conditions, he shall not work in such dangerous place except to make such dangerous conditions safe. It shall be the duty of the miner to properly prop and secure his place for his own safety with materials provided therefor.” No complaint is made in this case of a failure to furnish materials for prbpping the roof, but the complaint is that the roof was in a falling, unpropped and unstable condition. If it was in a falling, unstable and unsafe condition, it seems to us that it was the duty of appellee to properly prop and secure this place with the timbers that were furnished him, and that it cannot be said that where the miner had failed to prop and secure his room that that should be charged as an act of negligence upon the part of the appellant. We are of the opinion that'the contention of counsel for appellant upon this question is correct, and that there was not any evidence to show that appellant or any of its officers knew that the rock in question, which afterwards fell and struck appellee, was loose and liable to fall any time before it did fall, or that there was any evidence to show that appellant, by the exercise of reasonable care, could have known that it was loose, or that there was any evidence showing such conditions as required appellant to prop this roof and secure it.

It appears to us that the appellee failed to prove appellant guilty of negligence in the premises, and the judgment of the lower court is reversed and the cause remanded.

Reversed and remanded.


text:
    James Mills, Appellant, v. John H. Strawn et al. Allen E. Walker, Appellee.
    1. Notice, § 50

      —what is effect of. If a party taking a conveyance or incumbrance had notice at the time of taking it of an unrecorded mortgage or of facts which, put him upon inquiry that would, lead to knowledge of its existence, he is bound by such notice and his lien is subject to such prior lien.
    2. Notice, § 7*—when by recital in deed sufficient. Recital in a deed of conveyance that it Is given “subject to a mortgage of thirteen hundred dollars, which grantee assumes,” held sufficiently definite as notice to a subsequent purchaser of the land described in the deed to advise such purchaser that there was an incumbrance on the land..
    3. Notice, § 7*—when presumed that purchaser examined prior deed. It must be presumed that a purchaser of land examined a prior deed of record to the land and he is chargeable with notice of whatever such deed contained.
    4. Notice, § 7*—when burden is on, purchaser to show why not bound by notice of mortgage in deed. In a suit to determine the priority of an unrecorded mortgage and an execution sale, where a deed of record to the land involved was put in evidence containing a clause stating it was given subject to a mortgage for a certain amount, which was the mortgage in question, held that the burden was upon the subsequent purchaser at such sale to show some reason why he should not be bound by such notice of the mortgage contained in the deed.
    5. Notice, § 4*—when purchaser at execution sale does not make ' sufficient inquiry as to existing liens. Where the purchaser at an execution sale made no other inquiries prior to purchasing at such sale as to existing liens on the land to be sold than to ask of the judgment debtor as to such liens, who told him all the liens he knew of were of record, held that such inquiries by the purchaser did not show such diligence in the matter as to relieve him from the effect of notice of an unrecorded mortgage upon the land, contained in a recital in the deed of record to such debtor, that such deed was given subject to a mortgage for a certain amount, which the grantee assumed.
    Appeal from the Circuit Court of Wabash county; the Hon. J. C. Eagleton, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 13, 1917.

      Joel C. Fitch, for appellant.
    Allen E. Walker and P. C. Walters, for appellee.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

It is sought by this appeal to reverse a decree rendered in favor of the appellee.

It appears from the record that prior to the 18th day of August, 1911, Addie Morgan and Edgar A. Morgan were the owners of the west one-third of that part of the southwest quarter of Section 35, Township 1 north, Bange 14 west, lying north of the Indiana boundary line in Wabash and Edwards counties; also all that part of the northeast quarter of the southeast quarter of Section 34, town and range aforesaid, lying in Wabash county, and that on the date last aforesaid, the said Addie and Edgar Morgan were indebted to appellant in the amount of $1,300, and executed a mortgage upon the two tracts of land above described to secure the payment of such indebtedness. That afterwards and on, to wit, August 22, 1911, the said Addie and Edgar Morgan sold and conveyed the two tracts of land above described to Ansel Gould; that the deed of conveyance made by them to the said Ansel Gould contained the following clause: “The within deed is given subject to a mortgage of thirteen hundred dollars, which grantee assumes.” The deed executed was recorded in the counties of Wabash and Edwards but the mortgage above described was not at the time recorded in Edwards county but was recorded in Wabash county only. The mortgage sought to be foreclosed was identified as the one referred to in the deed and assumed by the said Gould. In February, 1914, a judgment was obtained by the Albion National Bank and against Ansel Gould, upon which ah execution was issued upon the 17th day of February, 1915, and the above-described lands situated in Edwards county were sold under said execution and purchased by the appellee for $160. The above-described mortgage was recorded in Wabash county on August 19,1911, but was not recorded in Edwards county until March 6, 1916. The appellant filed his bill in the Circuit Court of Wabash county to foreclose the mortgage and sell both of the above-described tracts of land. It was sought by this bill to obtain a prior lien or right over the said execution sale to appellee Walker as to the lands situated in Edwards county, and the court upon a hearing rendered a decree in favor of the appellant but decreed that the sale of the lands in Edwards county should be made subject to the rights of appellee Walker under the said sheriff’s certificate of sale. Appellant seeks by this appeal to reverse the decree on account of Walker being given a priority over the mortgage lien of appellant.

The appellant contends that the clause contained in the deed made by Addie and Edgar A. Morgan to Grould, wherein it is recited, “That the within deed is given subject to a mortgage of thirteen hundred dollars, which grantee assumes,” was notice of appellant’s lien and entitled appellant to priority over the certificate of sale of appellee Walker. Upon the other hand, the appellee contends that the clause in the deed is not sufficient notice of appellant’s rights to deprive appellee of his priority, and that if it was notice, that appellee made such inquiry with reference thereto as to relieve him of the consequences thereof and to establish a priority. It will be observed that the deed containing the above clause was filed in Edwards county on the 4th day of September, 1911; that the judgment was obtained in February, 1914, and that the mortgage was not recorded in Edwards county until March 6,1916, and that the land was sold under the execution and purchased by appellee on April 24, 1915. It is first contended by appellee that even if the appellant had notice of the time of the levy of execution and sale of an unrecorded mortgage, that this would avail nothing as against the force of the lien, and in support of this doctrine cites the Case of Columbus Buggy Co. v. Graves, 108 Ill. 459, and other cases. We have examined these cases and do not believe they sustain the appellee in his contention. The doctrine is there laid down that a judgment creditor and the purchaser are equally protected and that a judgment lien attaches to whatever interest in real estate the records disclose in the judgment debtor, in the absence of notice from other sources. We think the doctrine is well settled in this State that if a party taking a conveyance or incumbrance had notice at the time of the taking of it of an unrecorded mortgage or facts which put him upon inquiry that would lead to knowledge of its existence that then he is bound by such notice and his lien would be subject" to such previous lien. Inter-State Building & Loan Ass’n v. Ayers, 177 Ill. 9; Hatch v. Bigelow, 39 Ill. 547.

Again it is insisted that this recital in the deed is not ¿¡sufficient to give appellee notice of its existence, as it contained neither the name of the mortgagor nor mortgagee, or the date of the mortgage or its maturity. It is said in the case of Crawford v. Chicago, B. & Q. R. Co., 112 Ill. 314. Where the recital in the deed was of a similar character to the one in question, the Supreme Court said: “According to a long line of decisions in this court, too familiar to the profession to require citation, this agreement charged appellant with notice of the debt against this lot, secured by the trust deed, and such notice, as has been repeatedly held, is as effectual as if the trust deed had been duly recorded.” It was not necessary that the appellee should have full, complete and accurate information of the nature, extent and all of the particulars of the incumbrance. “It is insisted that appellant was only required to examine the record of deeds, and had that been done, no mortgage would have been found, or anything putting the company on inquiry. As a general rule, such is the case, but any notice, or circumstance that tends to give notice, or informs the party that there is an incumbrance, is sufficient to charge him with notice.” Aetna Life Ins. Co. v. Ford, 89 Ill. 252. We are satisfied that the clause contained in the deed to Gould was sufficiently definite to advise appellee that there was an incumbrance upon the land. It stated there was a mortgage of $1,300, and that that indebtedness was assumed by the grantee in the deed. This clause in the deed referred to was a part of the title and title papers that it became necessary for appellee to examine in determining whether or not the title was good and the land free of incumbrance, and under the law he was presumed to have examined it and he is chargeable with notice of whatever the deed contained. Crawford v. Chicago, B. & Q. R. Co., supra. When it was made to appear that this clause was contained in the deed, then we think that it devolved upon the appellee to show some reason why he should not be bound by this notice, and this was recognized by appellee and his counsel as a duty devolving upon them, for they offered evidence tending to show that he made inquiry concerning incumbrances upon the land, and we think the real question in this case is, “Did the appellee make such inquiries and investigation as to this lien as he was required under the law to do.” “ ‘The information must be of that character that a prudent person, by the exercise of reasonable and ordinary diligence, could, upon inquiry and investigation, arrive at the fact of the existence of such prior conveyance. ’ To the same effect are Doyle v. Teas, 4 Scam. 202; Rupert v. Mark, 15 Ill. 540; Heaton v. Prather et al., 84 id. 330; Hankinson v. Barbour, 29 id. 80. ’ ’ Stokes v. Riley, 121 Ill. 166. Pomeroy in his work says “If the party shows that he made the inquiry, and prosecuted it with reasonable diligence, but still failed to discover the conflicting claim, he thereby overcomes and destroys the inference. If, however, it appears that the party obtains knowledge or information of such facts, which are sufficient to put a prudent man upon inquiry, and which are of such a nature that the inquiry, if prosecuted with reasonable diligence, would certainly lead to a discovery of the conflicting claim, then the inference that he acquired the information constituting actual notice is necessary and absolute.” Pomeroy on Equity Jurisprudence, vol. 2, sec. 597. The same doctrine is announced in the case of O’Connor v. Mahoney, 159 Ill. 69. The investigation must be made in good faith in a reasonable manner and must be of the character likely to ascertain the truth.

The evidence in this case shows that the only investigation made by appellee, which is stated by himself, is that after having stated he represented a number of creditors of Ansel Gould, that he had a talk with Ansel Gould regarding the liens against his land prior to the time of the execution sale, and that he and others had conferred together about taking up the liens against Gould’s land and taking it over upon these judgments, and the appellee says: “In a conversation with Mr. Gould, either that or the preceding day, at any rate before I purchased the land, Mr. Gould told me all the liens he knew of against the land were of record in the county where the land was situated, and particularly all the liens he knew of were of record in Edwards County.” That is the only evidence introduced of any investigation upon the part of appellee to ascertain whether or not the lien set'forth in the deed still existed against the land. It does not appear from his testimony that he asked anything about this particular lien, and his statement is that Gould told him that all of the mortgages against his land were on record. It may be that Gould did not know whether this mortgage was on record or not, but if he had asked Gould the question, “Has this mortgage been paid,” and had obtained an answer from him that it had been discharged, then appellee would have been in a much better position than at present. Gould was the man who had assumed the debt and he knew whether or not it had been discharged, and we do not believe that the appellee prosecuted this inquiry with that diligence and earnestness and with the desire to ascertain whether or not the lien had been discharged that he should have done, and was required to do under the law. It appears to us from this record that the burden of showing that appellee was not bound by notice of the clause in the deed was upon the appellee, and it is denied by Gould that he ever made any statement to him at all concerning the mortgages. This, however, was a question of fact for the chancellor to determine. If he had prosecuted a proper inquiry to have ascertained whether or not this mortgage was still a subsisting lien, a different question might have arisen. As the record stands, we do not believe that the inquiry made by him was sufficient to relieve him of the effect of the notice contained in the deed, and the decree of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


text:
    Katie Hatzenbuehler, Administratrix, Appellee, v. Illinois Central Railroad Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Railroads, § 733

      —when evidence sufficient to show striking of person upon street. Evidence held sufficient to warrant the finding that plaintiff’s intestate was struck by defendant’s train upon the public street.
    2. Railroads, § 733*—when evidence is sufficient to show negligence in operation. Evidence of plaintiff held to warrant the finding that defendant was running its train at a greater rate of speed than permitted by the city ordinance and did not ring the bell on its engine as required by the ordinance.
    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Csow, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by Katie Hatzenbuehler, administratrix of the estate of Thomas Hatzenbuehler, deceased, plaintiff, against the Illinois Central Railroad Company, defendant, to recover for the death of plaintiff’s intestate from injuries sustained by being struck by defendant’s train. From a judgment for plaintiff for $2,000, defendant appeals.
    Kramer, Kramer & Campbell, for appellant; John G. Brennan, of counsel.
    W. H. Pfingsten and T. M. Webb, for appellee.

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

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

3. Appeal and error, § 1410 —when findings not disturbed on appeal. Where the evidence was conflicting, but sufficient to warrant the findings, and such findings were not against the manifest weight of the evidence, held that the findings should not be disturbed.

4. Negligence, § 90*—necessity of lack of contributory negligence. The exercise of due care by a decedent for his own safety at the time he sustained the injuries from which his death resulted is vitally important to a recovery of damages for such death.

5. Death, § 41*—when presumed that deceased was exercising due care at time of receiving injuries. Evidence by two witnesses who had known plaintiffs intestate for some time, and had associated with him, that he was a careful man, valued his life highly, and was accustomed to look out for trains before crossing railroad tracks, held to create a presumption that he was in the exercise of due care for his own safety at the time he sustained the injuries complained of.

6. Railroads, § 667*—what is duty of person attempting to go upon track. It is the duty of a person attempting to pass upon a railroad track to ascertain if there are any trains approaching.

7. Railroads, § 738*—when evidence shows lack of excuse for not looking before passing upon railroad track. Evidence held to show nothing to excuse plaintiffs intestate from looking and listening before passing upon defendant’s railroad track where he was injured by a passing train.

8. Railroads, § 678*—when person attempting to cross track is guilty of contributory negligence. Where there was nothing to excuse a person who was attempting to cross a railroad track from looking and listening for approaching trains, and had he looked and listened he could undoubtedly have, seen and heard the approach of the train which struck him, held that his failure to look and listen was contributory negligence.

9. Death, § 41 —when presumption as to exercise of due care is overcome. Where the only evidence that plaintiffs intestate was in the exercise of due care for his own safety at the time he sustained the injuries complained of was as to his habits, and the facts and circumstances proven showed he could have seen and heard the approach of the train which injured him and did not, held that the presumption created by the evidence as to his habits that he was in the exercise of due care was overcome.