text:
    Alvin DeFrates, Appellee, v. Central Union Telephone Company, Appellant.
    Appeals and errors—where appellate court is bound by decision of supreme court. Where plaintiff, a telephone lineman, obtains a judgment for personal injuries received while in the employ of defendant which is affirmed by the appellate court, but reversed and remanded by the supreme court, which holds that from the record it appears that plaintiff assumed the risk, and at a new trial in the circuit court there is no evidence introduced differing materially from the evidence contained in the former record, it is error for the trial court to refuse to direct a verdict for defendant, and on appeal the judgment for plaintiff will be reversed in accordance with the holding of the supreme court.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the April term, 1912.
    Reversed.
    Opinion filed March 18, 1913.
    W. B. MaUn, Conkling & Irwin and David K. Tone, for appellant.
    T. J. Condon and Albert Salzenstein, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action by plaintiff against defendant to recover for injuries received by plaintiff while in the employ of the defendant as a telephone lineman. Plaintiff recovered a judgment against defendant for $3,000, from which it prosecutes this appeal.

Plaintiff while in the employ of the defendant as a lineman, on the 6th of August, 1907, was engaged in removing wires from a certain telephone pole upon the farm of one Keene, for the purpose of removing the line from the position which it then occupied on Keene’s farm and reconstructing it along the highway where defendant then had another line of telephone wires. Mr. Keene desired to have the poles and wires removed from his field and have them run along this public highway instead.

This is the second appeal of this cause to this court. Plaintiff on the first trial of the cause recovered a judgment against defendant; on appeal from that judgment, it was affirmed in this court, 149 Ill. App. §69. A further appeal was prosecuted to the Supreme Court by defendant, 243 Ill. 356. Upon the record as it then was before the Supreme Court, that court determined that plaintiff must be held to have assumed the risk of injury from the falling pole. The facts concerning this injury are fully set forth in the opinion of the Supreme Court. By its judgment upon that record the Supreme Court held there could be no recovery and reversed the judgment of the Appellate Court and of the circuit court, and remanded the cause.

A remanding order was filed in the circuit court and a new trial had. The trial court was and this court is bound by the judgment of the Supreme' Court upon the former record as to all matters therein determined. The only question now involved in this controversy is whether or not there is any additional evidence produced in this record showing any liability on the part of the defendant. We have examined this record carefully and we fail to find therein any evidence differing materially in any respect from the evidence contained in the former record, and that the cause is in this court on this appeal without any substantial change or material difference in the record when formerly here.

In such condition of the record, the judgment of the Supreme Court upon the former appeal is conclusive. The trial court should have directed a verdict for the defendant, and it was error for it to refuse to do so. The judgment of the trial court is reversed with finding that the plaintiff assumed the risks incident to his employment and that the injury was caused by reason of the risks assumed by him in that employment, which finding will be entered in the judgment of this court by the clerk. The judgment is reversed.

Reversed.


source: Caselaw Access Project

author: Mr. Presiding Justice Thompson

license: Public Domain

text:
    Marie Hatcher, Appellee, v. Quincy Horse Railway and Carrying Company, Appellant.
    1. Carriers—stopping of car as invitation to passengers. The stopping of a car at the customary place for the reception of passengers is an invitation to persons intending to become passengers to board the car, and is tantamount to an acceptance of such persons as passengers.
    2. Carriers—passengers. Whether a person boarding a ear does so for the purpose of becoming a passenger depends largely upon the intention of such person at the time.
    3. Carriers—where a person boards a car intending to meet a friend. A person boarding a car for the purpose of meeting a friend, intending to become a passenger if the friend is on the ear, otherwise not, is not a passenger.

      4. Evidence—where silence of plaintiff amounts to an admission. In a personal injury action where plaintiff was injured by falling from the step of defendant's ear, testimony that, after the accident, plaintiff's son said that his mother got on the ear to see a certain woman and, not seeing her, stepped off and that the plaintiff did not deny the statement, is admissible as in the nature of an admission by plaintiff.
    5. Evidence—when plat is inadmissible. A plat which shows a cross section of the street at the place of the accident and a drawing of defendant’s car on the track and bears written memoranda as to matters which may be readily understood from oral testimony, is properly excluded.
    6. Evidence—permanency of injury. The testimony of plaintiff’s physicians as to the improbability of an injured limb ever improving, and that it could not be remedied by an operation, is properly admitted.
    7. Evidence—hearsay. Testimony of plaintiff that she first learned that a certain woman was not on the car at the time of the accident “when she came into the room in the hospital” is hearsay and improperly admitted.
    8. Instructions—based on the evidence of plaintiff. An instruction which does not direct a verdict is not erroneous because it is based on the evidence of plaintiff.
    9. Damages—must be based on evidence. Damages for necessary and reasonable medical expenses, nurses’ services, hospital bills, and the like which are claimed and averred in the declaration must be proved, and the jury may not assess damages for such expenses unless the amount of such expenses is proved by the evidence.
    10. Damages—for pain and suffering. Damages for mental and physical pain, suffering and inconvenience suffered or to be suffered in the future in consequence of an injury may be assessed though no witness has expressed an opinion as to their amount.
    11. Damages—for loss of time and inability to transact business. Where damages are claimed for present and future loss of time and inability to transact business, there should be some evidence concerning the occupation, earning capacity and value of the time and services of plaintiff.
    12. Carriers—contributory negligence; due care. Where plaintiff was injured in falling from defendant’s street car, she must show that she was in the exercise of due care at the time she was injured and in her actions leading up to the injury.
    Appeal from the Circuit Court of Adams county; the Hon. Akbert Akers, Judge, presiding.
    Heard in this court at the October term, 1912.
    Beversed and remanded.
    Opinion filed April 18, 1913.
    Wilson & Wall, for appellant.
    Frank J. Penick and Covert & Lancaster, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Marie Hatcher brought suit against the Quincy Horse Railway and Carrying Company to recover damages for injuries received by her in consequence of falling off the step of one of defendant’s cars.

The declaration avers that plaintiff at the time of the casualty, desired to be .carried and transported as a passenger on said car and while in the exercise of due care in getting on said car the defendant negligently caused said car to start, whereby she was thrown upon the street, by means whereof she was permanently injured and prevented from attending to her business, suffered great pain and incurred great expense for medical services, nursing, etc.

The appellant contends that the case should be reversed because a clear preponderance of the evidence shows that no judgment can be sustained on the evidence. This contention is based in part upon what appellant contends it could have proved by certain witnesses if the objection to the evidence had not been sustained. We cannot decide the case upon supposed evidence not in the record, and will not express any opinion on the merits of the case at this time as there are reversible errors in the result of the case.

It is a disputed fact whether the appellee was or not a passenger. Appellee testified that she intended to get on the car as a passenger to ride to her home, while appellant contends that appellee was not a passenger ; that appellee got upon the car to see if a Mrs. Govert was on said car, and if she was on the car, then appellee would have become a passenger but if Mrs. Govert was not on the car then appellee intended to get off the car and wait for another car on which Mrs. Govert had said she would meet her, and that appellee got on the car, and seeing that Mrs. Govert was not on it, was injured in negligently getting off the car.

The stopping of a car at the customary place for the reception of passengers is an invitation to persons intending to become passengers to board the car and is tantamount to an acceptance of such persons as passengers, yet whether a person boarding such car does so for the purpose of becoming a passenger depends largely upon the intention of such person at the time of boarding such car. North Chicago St. R. Co. v. Williams, 140 Ill. 288; West Chicago St. R. Co. v. Manning, 170 Ill. 420. There must be a bona fide intention on the part of such person to become a passenger or such a state of facts that the person will be a passenger if he gets on the car. Chicago & E. I. R. Co. v. Jennings, 190 Ill. 484. A person boarding a car for the purpose of meeting a friend intending to become a passenger if the friend was on the car, otherwise, not, is not a passenger. Texas & Pa. Ry. Co. v. Best, 66 Tex. 116; Metropolitan West Side El. R. Co. v. Sutherland, 139 Ill. App. 85; Robertson. Boston & N. St. Ry. Co., 190 Mass. 108.

The evidence of appellee is th t she intended to take the car the fall from which injured her, but that she only got on the steps of the ar when it started and the sudden jerk threw her on the pavement. The evidence of the motorman and conductor is that she got on the car, peered in as though looking for some one and then started to get off, when the conductor shouted to her, “Wait, lady, wait until the car stops.” The evidence as to the call of the conductor is corroborated by several ladies who got on the car just before her. After the accident in which appellee’s hip was badly injured she was carried to a store near by to wait for an ambulance. Appellant sought to prove by a reporter and two other witnesses, that he there inquired in her presence and hearing, while appellee was conscious of what was going on, how the accident happened, and that her son who was sitting beside her with his arms around her replied, that his “mother had got upon the car to see Mrs. Grovert and not seeing Mrs. G-overt she stepped off.” This evidence was by her failure to deny it proper in the nature of an admission by her and it was error to sustain an objection to it. Chicago City Ry. Co. v. Bundy, 210 Ill. 43; Kozlowshi v. City of Chicago, 113 Ill. App. 514; 1 Encyc. of Evidence, 376.

It is also insisted that the court erred in refusing to admit appellant’s Exhibit 1, which is a plat of the street at the place of the accident with a cross section of the street and a drawing of appellant’s car on the track. It was a controverted question whether appellee got on the platform of the car or only upon the step of the car before she was injured. If she only got on the step, then not more than her face could be seen from the opposite side of the street through the window of the car, while if she got on the platform then her head and shoulders could be seen through the window. The plat has many measurements marked upon it with various lines showing the levels or lines of vision from the curb, sidewalk, grade of the buildings and from certain elevations above the sidewalk to a person of the height of appellee standing on the further step, or platform of the car through the window, with written memoranda of the heights and distances in feet and inches and gives a full explanation of the various lines and figures and what the various levels and lines of vison are. These were all matters that are readily understood from the oral testimony of witnesses. The plat as offered was an endeavor to get before the jury the written testimony of the author of the plat that it might take such written evidence to the jury room, and is in the nature of a written argument upon the oral testimony; While a general plat would be proper (Justen v. Schaaf, 175 Ill. 45; Wahl v. Laubersheimer, 174 Ill. 338), the court properly sustained the objection because of the written memoranda, levels and lines of vision thereon.

Appellant insists that it was error to permit appellee to prove by her physicians the improbability of the conditions of her injured limb ever improving, and that it could not be remedied by any operation. Nothing was asked concerning the expense of such an operation. The evidence admitted only tended to prove the permanency of her injury and there was no error in admitting it.

Appellee was asked on re-examination by her counsel when she first learned that Mrs. G-overt was not on that car and answered over the objection of appellant “when she came into the room in the hospital.” This is clearly hearsay testimony and incompetent and should not have been admitted. It was proper to tell what she saw at the car, but to tell what she learned afterwards from other parties was reversible error.

It is assigned for error and argued that the court erred in giving several instructions requested by appellee. The first instruction is an abstract proposition and should have been made applicable to the evidence. The third while made applicable to the evidence is a repetition of the first and is of a very argumentative nature. Appellant contends that the first and third instructions were erroneous, because they contained no reference to the claim of appellant, that appellee only intended to become a passenger if Mrs. Covert was on the car. These instructions did not direct a verdict, and were based on the evidence of appellee and there was no error in the respect contended for by appellant.

The sixth tells the jury that if they find for the plaintiff “and that plaintiff has sustained damages as charged in the declaration, then to enable the jury to estimate the amount of damages it is not necessary that any witness shall have expressed an opinion as to the amount of such damages, but the jury may themselves make such estimate from the facts and circumstances in proof and by considering them in connection with their general knowledge, observation and experience in the business affairs of life.” The seventh is also on the question of the assessment of damages and authorizes the jury if they find for plaintiff to consider among other things her “future inability to labor or transact business if any.” The declaration claims damages by way of money expended for medical services, hospital bills, nursing, etc., to the amount of $500. Damages for necessary and reasonable medical expenses, nurses’ services, hospital bills and the like, which are claimed and averred in the declaration must be proved, and a jury may not assess damages for such expenses unless the amount of such expenses are proved by the evidence. (North Chicago St. R. Co. v. Fitzgibbons, 180 Ill. 466, affirming 79 Ill. App. 632; Harley v. Aurora, E. & C. R. Co., 149 Ill. App. 339.)

A jury may only assess damages for mental and physical pain, suffering, and inconvenience suffered or to be suffered in the future in consequence of the injury, from the evidence in the case on the question of damages considered in connection with their general knowledge, observation and experience in business affairs. Regarding such damages it is not necessary that any witness shall have expressed any opinion as to the amount of such damages, but for damages for loss of time and inability to transact business, which to some extent can be proved or measured, there should be some evidence concerning the occupation, the earning capacity and value of the time and services, for the present and future loss of which damages are claimed. “The general rule seems to be in order to warrant a recovery for time lost there must be some evidence from which its value may, at least be inferred.” 8 Am. & Eng. Encyc. of Law, 651. There is no evidence in this record of the occupation of appellee or what she was doing, or the value of anytliing she was doing, or was capable of doing. It is stated in the argument for appellee that she was keeping house for her stepson, but we find no evidence on that question. There should be some evidence on which to base each element of an instruction. It is also contended that “an instruction concerning the exercise of due care by the appellee was too limited in that it was confined to the time of the alleged injury and immediately prior thereto. ’ ’

The appellee is required to show she was in the exercise of due care at the time she was injured and in her actions leading up to the injury. Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544. It is also insisted that there was error in refusing certain instructions requested by appellant. The refused instructions were substantially given in other instructions and it is unnecessary to review them or the other matters presented by counsel.

For the errors indicated the judgment is reversed and the cause remanded.

Beversed and remanded.


text:
    Johanna Frorer et al., Executors, Defendants in Error, v. C. A. Nicholson, Plaintiff in Error.
    1. Trusts—where stockholder of corporation acts as trustee. Where in an action by an executor on a note given testator, a stockholder in a mining corporation, by defendant, another stockholder, for money which testator advanced as defendant’s share of a loan raised by the stockholders for the corporation, it is shown that the corporation gave a mortgage to testator covering all its property, the mortgage was foreclosed, the property bid in by testator, and that the stockholders continued to advance money for the protection of the mining property until it was found to be worthless, there is sufficient evidence to show that deceased was acting as trustee for the other stockholders, and defendant is liable on his note.
    2. Trusts—where several persons advance the price of property. Where two or more persons advance the price and title is taken in the name of one of them, a trust results in the favor of the others to such proportion of the property as is equal to the proportion of the consideration contributed by each.
    3. Trusts—resulting trust. A resulting trust arises by implication of law from the acts of the parties.
    Error to the Circuit Court of Logan county; the Hon. Thomas M, Harris, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 18, 1913.
    Blinn & Covey, for plaintiff in error.
    King & Miller, for defendants in error.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

In 1898, A. B. Nicholson, C. A. Nicholson, Frank Frorer, T. T. Beach, Joseph Hodnett, S. A. Foley, J. T. Hoblit, Frank Hoblit, John F. Mundy and W. A. Watkins, residing in Lincoln, Illinois, became interested as purchasers of stock in the Rollins Mining Co., a corporation, doing business in the state of Utah. There were other persons largely interested as stockholders in this corporation but the above named stockholders purchased their stock together and acted together thereafter in the transactions concerned in this suit. Of the stock owned by these Lincoln stockholders, the Nicholsons together owned two-tenths; Frorer, one-tenth; Beach and Hodnett together, one-tenth; J. T. Hoblit, two-tenths; Frank Hoblit, one-tenth; Mundy, one-tenth; and Watkins, one-tenth, and they co-operated together in advancing money for the development and other expenses on the basis of these proportions. For the purpose of development of the company's mining property these Lincoln stockholders in 1899, mutually agreed to raise and loan to the company the sum of $20,000, this amount to be raised and advanced or loaned by said persons in proportion to their several interests. This made the amount to be paid in by A. B. and C. A. Nicholson, the sum of $4,000 and this amount was furnished by Frank Frorer, who took a note signed by the Nicholsons for $4,000 dated May 15, 1899, due on or before two years after date with interest at six per cent per annum from date until paid, payable to the order of Frank Frorer and stating that it was given to idemnify said Frank Frorer for the share of the Nicholsons in the $20,000 advanced to the Rollins Mining Co., “for which he holds collateral notes of the R. M. Co.” Like notes were given by the other Lincoln stockholders to Frorer and he took notes executed by the Rollins Mining Co., to secure himself and the other stockholders for the amounts so advanced. The Rollins Mining Co. also gave to" Frank Frorer a mortgage covering all the property of the corporation, to secure a note for $50,000, which recited that the note and mortgage were given upon the “express stipulation and agreement that the same is to be held as collateral security, only, for the payment of the notes of said Rollins Mining Company, executed to said Frank Frorer, or others, for advances made to the Rollins Mining Company in and about the development and operation of its mines, ’ ’ arid containing the stipulation that this note shall stand as security for all such advances whether made by Frorer or others. Similar recitals are also in the mortgage. Thereafter Frorer advanced to the Eollins Mining Co., possibly without the written consent of the Nicholsons, further sums until the entire amount was $50,000.

The Eollins Mining Co., after expending the entire sum advanced as aforesaid, completely failed in its efforts to develop their property into a producing mine. It was in default in the payment of interest on its loans and in the payment of the principal or any portion thereof. It had abandoned its attempts at development and further sums were being advanced by the Lincoln stockholders to • pay the salary of a watchman at the mine and other expenses connected with the protection of the property. The mortgage was foreclosed and the property bid in by Frorer in July, 1903, for the sum of $58,479.09, being the full amount of the debt and costs and he thereafter obtained a deed for the same in his own name.

The Lincoln stockholders continued to advance money for the protection of the mining property until some time in 1908, when it became apparent that the mine was practically worthless and they stopped making any further advances.

In the meantime Frank Frorer died; letters of administration were taken out in Utah on his estate by persons having claims for watchman’s salary and current expenses in connection with this mining property, and it was sold to satisfy these claims, for the sum of $1,328.30, the amount of the claims and costs, to Stephen A. Foley, one of the parties in interest.

This suit was brought by the executors of Frank Frorer to recover upon the note for $4,000, given by A. B. and C. A. Nicholson as above stated, and which has not been paid. A trial before a jury resulted in a verdict for the plaintiff for $4,000, the principal of the said note on which judgment was rendered against the Nicholsons who sued out a writ of error to review that judgment. The case was submitted and taken under advisement at the October term of this court. A. B. Nicholson died since the case was taken under advisement, his death has been suggested on the record, and this suit is now prosecuted by C. A. Nicholson, surviving plaintiff in error.

The defense urged in the. trial court by plaintiff in error is that this $4,000 note was collateral to the notes of the Rollins Mining Co., held by Frorer, and that the purchase at the foreclosure sale of the entire property of the Rollins Mining Company by Frorer in his own name for the full amount of the debt and costs extinguished the debt of the Rollins Mining Company, and entitled the Nicholsons to the return of their $4,000 note, held as they claim as collateral.

It appears from the evidence that a large number of the stockholders of the Rollins Mining Company, on March 22,1901, entered into an agreement to turn over to the Company three-tenths of the entire amount of the stock held by them severally into the treasury of the Company to be treated as treasury stock and to be sold by the Company to raise money for the purpose of paying the current expenses of caring for the property, to pay interest accrued and accruing upon the indebtedness of the Company and to develop the properties of the Company and pay its indebtedness. This agreement bears, among the others, the signature of Charles A. Nicholson and of “A. B. Nicholson by C. A. N.,” and was given in consideration of a further agreement of the same date signed by the group of Lincoln stockholders, except A. B. Nicholson, describing said notes as being “held by the undersigned” and remaining unpaid, together with the accrued interest thereon. This agreement provides that in consideration of the performance of the provisions of the first agreement, the maturity of the note and mortgage referred to therein should be extended for two years from and after June 5, 1901, provided that all accrued interest and interest to accrue to June 5,1902, should be paid on or before June 5, 1902.

It also appears that the Lincoln stockholders long after the foreclosure and sale considered the mine valuable property and that they met and considered propositions for the sale of the same; that C. A. Nicholson, as appears from his own evidence, was personally present at one of these meetings held in 1904 or 1905, although some of the stockholders fix the date of that meeting as in 1906 or 1907; that a contract for the sale of the premises was entered into in 1907, for the sum of $100,000, but which was not carried out, and that it was not until it was found that the mine was worthless that the Nicholsons claimed that they had no interest in it.

The proof further shows that after the date of the master’s deed to Frorer, January 9, 1904, the Nicholsons continued to pay interest on their share of the sum advanced by Frorer; that they continued to pay their share of the expense money and that the expenses of Hodnett and Hoblit, who were in Utah personally looking after the foreclosure proceedings; were paid out of the¡ common fund contributed pro rata by the Nicholsons and their associates.

Other acts of the parties subsequent to the foreclosure sale show that it was considered by the stockholders and by Frorer before his death, that the property belonged to the group of Lincoln stockholders and that Frorer was but a trustee for them;

Where two or more persons advance the price and title is taken in the name of one of them, a trust results in favor of the others to such proportion of the property as is equal to the proportion of the consideration contributed by each. Van Buskirk v. Van Buskirk, 148 Ill. 9, and cases there cited.

Some of the parties for whom Frorer had made advances in the same manner as he did for the Nicholsons, and whose notes he had taken as he took Nicholsons’, paid their notes; these notes were surrendered to the makers and their proportionate interest in the premises conveyed to some of them by Frorer in his lifetime, and to one by his executors after his death.

What Frorer did in the foreclosure proceedings was for the benefit of the Lincoln stockholders and not for his individual benefit. The trusteeship of Frorer arose, not from the contract or agreement of the parties but from their acts. Van Buskirk v. Van Buskirk, 148 Ill. 9. This rule is also announced in Lewis v. McGrath, 191 Ill. 401, at page 407, where the court say: “In Dorman v. Dorman, 187 Ill. 154, we say (p. 158): ‘ A resulting trust arises by implication of law, from the acts of the parties.’ (Donlin v. Bradley, 119 Ill. 412; Van Buskirk v. Van Buskirk, 148 Ill. 9; 1 Perry on Trusts, sqc. 134).”

If the property had proved valuable the group of Lincoln stockholders would have been entitled to their proportionate share in the profit arising from a sale of the same. Frorer was acting as trustee for them and when this property proved to be almost worthless and consequently a loss to the stockholders it naturally follows that there was nothing to be applied upon the debts of anyone else.

Frorer held the note of the Nicholsons, not as collateral to the notes of the Eollins Mining Company, but as a note indemnifying him for advances made by him on their account and for which he held as collateral the notes of the Eollins Mining Company.

Complaint is made by plaintiff in error that instructions were given which were not applicable to the declaration as shown by the abstract. The special count abstracted by plaintiff in error, which sets up an express trust was withdrawn, and the suit was tried upon the second additional special count which avers a resulting trust, the special count which declared upon the instrument as a note without pleading the effect of the memoranda, and the common counts. These counts are not abstracted by counsel for plaintiff in error, but are shown in the additional abstract. The instructions complained of were proper under the second additional special count. Finding no error in the record the judgment is affirmed.

Affirmed.


text:
    Emma Passwaters, Administratrix, Appellee, v. Lake Erie & Western Railroad Company, Appellant.
    1. Railroads—speed of trains. In the country, a railroad may run its trains at any speed thought proper, consistent with the safety of travelers who are attempting to cross the highway crossings in the exercise of due care, and with the safety of its passengers and employees.
    2. Railroads—what instruction as to speed of train and warnings gimen is proper. It is not error to instruct, in an action against a railroad company for wrongful death, that even if the jury believe from the evidence that the whistle was blown and the bell rung for the crossing in question, yet if they believe that defendant’s servants were negligently running the train at such a dangerous speed as to render the warnings unavailable, and that by reason thereof such warnings were not a reasonable warning of the approach of the train, and that deceased was struck and killed by defendant’s train by reason of such negligence, then verdict should be given for plaintiff, if they believe deceased was in the exercise of due care.
    3. Railroads—speed at highway crossing. The speed of a train at a highway crossing should not be so great as to render the warning by bell or whistle unavailing.
    4. Railroads—management of trains at crossings. The common law imposes a duty on railroads to use reasonable care in the management of trains approaching dangerous crossings in addition to the statutory duty.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 18, 1913.
    Rehearing denied May 16, 1913.

      John E. Pollock and W. B. Leach, for appellant; John B. Cochran, of counsel.
    Schneider & Schneider and Barry & Morrissey, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Emma Passwaters, as administratrix of the estate of Charles A. Passwaters, deceased, brought suit against the Lake Erie & Western Railroad Company, charging said railroad company with negligence in the running and management of a train by means whereof Charles A. Passwaters, while attempting on a public highway to drive across the track of the defendant was struck by the train and killed. There was a verdict and judgment for $5,000 in favor of plaintiff, and the defendant appeals.

The declaration contains eleven counts averring in different forms that the defendant was guilty of negligence in failing to give the statutory signals required when a train approaches a highway crossing; and in running its train at a high and dangerous rate of speed across a public highway.

The evidence shows that the accident occurred a mile and a half west of Holder in McLean county. The railroad runs practically east and west and the public highway crosses it at right angles. The highway north of the railroad is lower than the railroad. The railroad west of the highway runs through a cut about ten feet deep through a knoll, the crest of which is north of the railroad and west of the highway. The cut ends about at the highway and is not deep enough to conceal a train, although the knoll a short distance north of the railroad prevents travelers on the highway a few rods north of the railroad from seeing the train until it gets near the highway. At the north line of the right of way and the west side of the highway the surface of the ground is about eight feet above the traveled road.

On the west side of the highway and north of the railroad right of way was a hedge fifteen feet high, but it had been trimmed so that it was about five feet high for a few feet north from the right of way which extends 32 feet north of the center of the track. The knoll and the hedge would obstruct the view of any person approaching the crossing'from the north until they got within about thirty-five feet of the track. On the day of the accident the deceased, who had been to Bloomington with his daughter, drove south towards the railroad in a buggy drawn by a pair of mules a little after two o’clock in the afternoon. The top of the buggy was down. About half a mile north of the crossing he stopped and talked with some men working the road; after he left the road graders, he passed the house of Frank Hall, a quarter of a mile from the track. Hall saw him, while driving at a trot, look at his watch and heard him say something to his daughter about the train. The foreman of the grading gang heard the rumble of the train, and looked toward the crossing just as the deceased drove on the track and was struck by the train. Wesley James, who lives half a mile south of the railroad, while looking out of a window in his kitchen, saw and watched the deceased driving along the highway for a quarter of a mile and saw bim drive upon the track. The engineer, sitting on the right hand side of the cab of the engine looking ahead down the track, felt the engine strike something and saw a mule’s head over the pilot; he stopped the train, which ran upwards of half a mile past the crossing, before it could be brought to a stand. The fireman at the time of the accident was in the coal pit breaking coal. Passwaters and his little girl, both dead, were found seventy or eighty feet east of the crossing.

On the question of whether the bell was rung or the whistle blown as required by the statute the evidence is very conflicting.

The train was three or four minutes behind time and was running at from 55 to 60 miles an hour.

It is contended on behalf of appellant that the deceased was not in the exercise of due care. The crossing is shown by the evidence to be a very dangerous one for a traveler coming from the north. A train coming from the west could not be seen because of the hedge and the knoll, until the traveler was thirty-five feet from the track and then only for a short distance along the track toward the west. Appellant’s counsel state that thirty-two feet from the crossing a traveler could see two hundred to two hundred and fifty feet when looking west, and a little less than twenty-one feet he could see beyond the whistling post. A train traveling sixty miles an hour goes at the rate of eighty-six feet per second. When the train was two-hundred and fifty feet distant it could not be seen by a traveler on the highway thirty-five feet from the crossing and if a traveler at that distance from the crossing should then look and listen he might neither hear nor see it, and yet in less than three seconds it might be on the crossing. There is no law in this state limiting the rate at which a train may run in the country, and a railroad may run its trains at any speed thought proper consistent with the safety of travelers, who are attempting to cross the highway crossing in the exercise of due care for their own safety, and with the safety of its passengers and employees. Partlow v. Illinois Cent. R. Co., 150 Ill. 321. Wesley James and the foreman of the grading gang, although half a mile distant, saw the deceased drive on the track. The evidence does not show either that the deceased looked and listened or that he failed to look and listen before driving on the track. It is manifest that the witnesses, who saw him, one being a half a mile behind him, and the other half a mile in front of him, could not see what he did, and a failure to look and listen is not necessarily such contributory negligence as will preclude a recovery, Dukeman v. Cleveland, C., C. & St. L. R. Co., 237 Ill. 104. The evidence shows that the deceased was a sober and industrious man 35 years of age, but on appellant’s objection, appellee was not permitted to prove his habits with reference to care and prudence. We are of the opinion that the questions of whether the appellant gave the required statutory signal, and whether it was guilty of negligence in running its train at such a rate of speed over a crossing that was specially dangerous to travelers on the highway coming from the north, and whether the deceased was in the exercise of due care were all questions peculiarly for a jury to decide on a consideration of all the evidence. We are not able to say that the verdict is manifestly against the evidence.

It is insisted that the court erred in giving the following instructon: “Even if you should believe from the evidence that the whistle was blown and the bell rung for the crossing in question, yet, if you should further believe from the evidence that the defendant’s servants at the time in question, were carelessly and negligently running the train at such a high and dangerous rate of speed as to render the blowing of the whistle and the ringing of the bell unavailable, and that by reason thereof, the ringing of the bell and the sounding of the whistle was not a reasonable warning of the approach of the train under all the facts and circumstances- in evidence, and that the plaintiff’s intestate was struck and killed by the defendant’s train by reason of the negligence aforesaid, if you believe from the evidence there was negligence on the part of the defendant, in that regard, then your verdict should be for the plaintiff providing you further believe from the evidence that the deceased was in the exercise of ordinary care for his own safety while approaching and going upon the crossing.

The contention of appellant is that this instruction requires the giving of signals other than statutory signals and leaves it to the jury to say what other signals should be given. The instruction does not either directly or by inference refer to other signals than the statutory ones. It simply tells the jury that plaintiff is entitled to recover if they believe from the evidence that the train was negligently run at such a high and dangerous rate that the ringing of the bell and the blowing of the whistle was not a reasonable warning of the approach of the train. The speed of a train at a highway crossing should not be so great as to render the warning by bell or whistle unavailing. Chicago, B. & Q. R. Co. v. Lee, 87 Ill. 454.

Complaint is made of appellee’s second and third given instructions on the ground that there was no evidence on which to base them. The second is concerning the running of trains over crossings at a high and dangerous rate of speed; the third concerns the statutory signals at highway crossings. Both instructions are made applicable to the case and require the jury to find certain things from the evidence.

Appellant also insists that there was error in refusing instructions requested by it. The principles of law of many of the instructions refused were fully recited in the eighteen given for appellant. The eleventh instruction was an abstract instruction and did not refer in any way to the evidence in the case. It was argumentative and properly refused for that reason. It also told the jury that if a bell weighing thirty pounds was rung or a whistle blown for eighty rods before reaching the crossing the company was without blame so far as giving signals are concerned. In addition to the statutory duty of railroads the common law imposes a duty on railroads to use reasonable care in the management of trains approaching dangerous crossings. Illinois Cent. R. C. v. Ebert, 74 Ill. 399; Elgin, J. & E. Ry. Co. v. Lawlor, 229 Ill. 624; Chicago, B. & Q. R. Co. v. Perkins, 125 Ill. 127. The thirteenth refused was given in appellant’s sixteenth instruction.

The jury were fully instructed on every question of law in the case. Finding no error of law, and the facts in the case being peculiarly within the province of a jury and the verdict not being manifestly against the evidence, the judgment is affirmed.

Affirmed.


text:
    James E. Larimer, Appellee, v. Richard Snell, Administrator, Appellant.
    1. Administration of estates—judgment against executor after will is set aside and executor removed. Where a claim was allowed in the probate court against the executor of an estate, as executor, and an appeal was perfected to the circuit court which rendered a judgment against the executor, such judgment is only voidable though the will was set aside, the executor removed, and an administrator appointed before it was rendered.
    2. Administration of estates—citation. Where no effort has been made to set aside a voidable judgment entered by the circuit court for a claim against an executor, as executor, when the will had been, set aside, such executor removed, and an administrator appointed; it is not error for the circuit court to enter an order requiring the administrator to pay the claim on a citation filed by the claimant.
    Appeal from the Circuit Court of De Witt county; the Hon. William G. Cochran, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 18, 1913.
    Rehearing denied May 16, 1913.
    Ingham & Ingham, for appellant.
    C. A. Magaw and Stone & Gray, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Thomas Snell died testate. The will nominated Lincoln H. Weldon as executor and letters testamentary were issued to him. T. L. Barnes filed a claim in the probate court against the estate of the deceased for $4,000. A summons was issued in the matter of this claim against Weldon, executor, and duly served. James E. Larimer having been appointed assignee in bankruptcy of Barnes was substituted as claimant, and the claim was allowed on February 7, 1910, for the sum of $1,615.19 against the executor. Thomas Snell, an heir, prayed for and perfected an appeal to the circuit court from the allowance of the claim.

On February 22, 1910, the will of Thomas Snell was set aside and the letters to the executor revoked. On April 1, 1910, Richard Snell was appointed administrator of the estate; neither the removal of Weldon as executor, nor the appointment of Snell as administrator was suggested on the record in the appeal in the circuit court; neither did the administrator enter his appearance nor was any summons issued and served on him. In the circuit court the claim was tried before a jury on June 6, 1911, and a verdict in favor of claimant returned for $1,000 against Lincoln H. Weldon, executor, on which judgment was rendered.

On September' 30, 1911, Larimer filed a petition for a citation in the county court requiring Richard Snell, administrator, to show cause why he has not paid the claim of petitioner; From an order made on the hearing of this petition, an appeal was taken to the circuit court, and on hearing in the circuit court an order was entered requiring the administrator to pay the claim.

The administrator appeals and contends that the judgment of the circuit court of June 6, 1911, is void under sections 18 and 11 of chapter 1 of the Revised Statutes. Section. 18 of chapter 1, title “Abatement,” provides: “When an executor, administrator, guardian or conservator is plaintiff, petitioner or complainant, or defendant in a suit or proceeding in law or equity, and dies, resigns or is removed from office before final judgment or decree, the suit or proceeding shall not on that account abate, but the same may be continued by or against his successor, in like manner as in case of the death of other parties.”

Section 11 of the same chapter provides: “When there is but one defendant in an action, proceeding or complaint, in law or equity, and he dies before final judgment or decree, such action, proceeding or complaint shall not on that account abate, if it might be originally prosecuted against the heir, devisee, executor or administrator of such defendant, but the plaintiff, petitioner or complainant may suggest such death on the record, and shall, by order of the court have summons against such person or legal representative, requiring him to appear and defend the action, proceeding or complaint, after which it may proceed as if it had originally been commenced against him.”

It was held in Grier v. Cable, 159 Ill. 29; that “the proceedings provided by law in this state for the presentation and allowance of claims- against the estates of decedents are in no proper sense suits or proceedings at law or in chancery, but purely statutory proceedings, provided for the prompt and summary presentation, allowance and classification of all just claims against such estates.”

The probate court had jurisdiction over the estate of the deceased, while Weldon was executor and legal notice of the presentation of the claim of Larimer, assignee, was given the estate by service of summons on the executor. The probate court had jurisdiction over the subject-matter and the parties, when the claim was tried in that court. The appeal was prayed to the circuit court by the executor and Thomas Snell, one of the heirs, but the appeal was perfected by the heir only. After that the executor was removed by the setting aside of the will and Richard Snell was appointed administrator, the claimant should have suggested to the court the removal of the executor and the issuing of a summons and service thereof on the administrator, analogous to the procedure at law. We find no direct authority in this state on the effect of proceeding to judgment, in a statutory proceeding in the circuit court when a new representative was appointed after the appeal was perfected. There is authority however on the question of the proceeding to judgment after the death of a sole defendant, in an action at law in the circuit court. If jurisdiction be obtained of the person of a defendant in his- life time by service of process or appearance, a judgment against him after death is not void but voidable, and such a judgment cannot be attacked collaterally. It may be reversed on appeal if the defendant’s death appear from the record or it may be vacated on motion in the court where it was rendered on a proper showing, Claflin v. Dunne, 129 Ill. 241; Danforth v. Danforth, 111 Ill. 236; Mitchell v. King, 187 Ill. 452; Freeman on Judgments, sec. 153. The Claflin case, supra, overrules the earlier case of Life Association v. Fassett, 102 Ill. 315, and it has since been cited and followed in Pyatt v. Riley, 252 Ill. 36, where it is said: “The same rule is laid down in 1 Black, on Judgments, 204 (2nd Ed.), a thing that is not void but voidable has force and effect, but in consequence of some inherent quality or defect it is liable, upon proper steps being taken, to be legally annulled or avoided, but the steps to void it must be taken by the proper party and by means of a direct attack upon it.” In Beard v. Roth, 35 Fed. Rep. 397, it was held that a judgment fixing the amount due from an administrator on his settlement, which was rendered after his death, was not void and could not be collaterally attacked by the sureties in a suit on the bond to recover the amount of the judgment. See also Reid v. Holmes, 127 Mass. 326; McClelland v. Moore, 48 Tex. 355; Yaple v. Titus, 41 Pa. St. 202; Hayes v. Shaw, 20 Minn. 405; Merrill v. Suffolk Bank, 31 Me. 57; 11 Encyc. of Pl. & Pr. 844.

The judgment of the circuit court on the claim of appellee is only voidable and is still in full force and effect. No effort having been made to set it aside, there was no error in the order made on the citation.

The order of the circuit court is affirmed.

Affirmed.


author: Mr. Justice Creighton

text:
    Jennie Welfley, Defendant in Error, v. J. E. Babb et al., Plaintiffs in Error.
    1. Mortgages—decree of foreclosure pro confesso. Where the defendants in foreclosure proceedings were duly served and were defaulted and it was ordered that the cause be taken as confessed against them and the cause referred to a master to take the proof and compute the amount, the sufficiency of the evidence to sustain the decree cannot be questioned on appeal.
    2. Mortgages—personal judgment for deficit. Where the bill for foreclosure, which is supported by the evidence, is sufficient to warrant the decree of foreclosure and sale, it is the court’s duty, when a deficit, is shown, to render personal judgments against defendants who assumed and agreed to pay the mortgage debt.
    Error to the Circuit Court of Christian county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 18, 1913.
    William: H. Craig, Thomas M. Headen and Walter C. Headen, for plaintiff in error, J. E. Babb.
    McMillen & McMillen, for defendant in error.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a writ of error sued out of this court, by plaintiff in error, to bring into review in this court the decree of foreclosure, sale and deficit entered in the circuit court of Christian county.

The record discloses that the defendant in error filed her bill of foreclosure in the said Christian county circuit court to the November term, 1911, and that due service was had upon the plaintiff in error and all the other defendants.

The bill is the usual and ordinary bill for foreclosure of a mortgage, except that it alleges that the mortgage provides that if default be made in the payment of the principal note, or any part thereof, or the interest thereon, or any part thereof, at the time and in the manner provided therein for the payment thereof, that in such case the whole of said principal sum and the interest secured by the said mortgage, shall thereupon, at the option of the mortgagee, immediately become due and payable, and the said mortgage may be foreclosed immediately to pay same. And the bill further alleges that the interest for one year, on said promissory note, became due and payable on the 11th day of September, 1911, and that the same has not been paid or any part thereof. The bill further sets forth that Catherine E. Miller, J. E. Babb and William A. Wallace each received deeds to said premises so secured by said mortgage, after the making and delivery and recording of same, and that each of them received their respective deeds as grantees, subject to the said mortgage, and that each of them, by said deeds, assumed and agreed to pay said mortgage. The bill then alleged that by reason of the failure to pay the said interest when due the whole of said debt became due and the said mortgaged property became forfeited, etc.

These allegations are practically contained in the copy of the mortgage filed with the bill.

The bill concludes, after a minute description of the nature and character of the debt and of the transfers by the several owners of the land after the execution and recording of the mortgage, with the usual and formal prayer for foreclosure and sale.

On December 15, 1911, all defendants were severally called and defaulted, and it was ordered by the court that the cause be taken as confessed against each of the said defendants, including the plaintiff in error. The court then ordered the cause to be referred to the master in chancery to take the proofs and compute the amount due, and the master, after taking the proof, found there was due to the complainant the sum of $2,688.35, and that Catherine E. Miller, J. E. Babb, plaintiff in error, and William A. Wallace, grantees as foresaid, had assumed and agreed to pay said mortgage debt. The report of the master was approved by the court, and a decree was entered for $2,688.35 as due to the complainant, and ordered to be paid within ten days, with lawful interest, together with one hundred dollars- solicitor’s fees to be taxed as costs, as provided in said mortgage; and provided that if default be made in such payment that the master sell, etc.

On January 24, 1912, the master made sale of the premises, after legal notice, and said report was duly approved on February 3,1912, being one of the judicial days of the February term of said court. The report of sale showed that the mortgaged premises were sold for $1,200, and that a deficit of $1,671.55 remained due the complainant, after exhausting the security mentioned in the mortgage and decree; and, thereupon, judgment was entered by the court in favor of the complainant, and against Catherine E. Miller, J. E. Babb, plaintiff in error, and William A. Wallace, and each of them, personally, for said sum.

Objection is made that the evidence presented upon the hearing of this cause is not sufficient to support the decree.

We cannot agree with this contention of counsel. “Where the bill is taken for confessed, the sufficiency of the evidence admitted to sustain the decree cannot be considered in this court. In such case a decree may be rendered without any evidence, and the only inquiry admissible on error is as to the sufficiency of the allegations of the bill.” Hannas v. Hannas, 110 Ill. 53, and cases there cited.

While there was proof taken, sufficiently in our judgment to warrant a decree, it would seem that the decree would have been valid and binding had it been taken pro confesso in this case.

It is further contended by plaintiff in error that the record fails to show that the defendant in error declared a forfeiture, or elected to exercise her option to declare the whole of the debt due because of the failure to pay the interest which was past due.

Under our view the allegations of the bill herein were sufficient in this respect, and also sufficient to warrant the court in rendering the decree against the plaintiff in error and the other defendants below; and when a deficit was shown, it became the duty of the court to render personal judgments against the plaintiff in error and his codefendants who had assumed and agreed to pay the mortgage debt.

We fail to find any reversible error in the record, and the decree is, therefore, affirmed.

Affirmed.


text:
    Daniel E. Robbins et al., Plaintiffs in Error, v. Joel K. Scarborough et al., Defendants in Error.
    1. Schools—custody of funds. The statute defining the duties of the board of trustees of schools as to the examination of notes, mortgages, securities, etc., of the township treasurer, or other school officer, imposes a duty for the purpose of preserving the school funds foT the benefit of the public schools and not to protect those who may choose to become bondsmen for the school treasurer.
    2. Schools—duty on board of trustees to examine notes, etc., of treasurer. The statute defining the duties of the board of trustees of schools to examine the notes, mortgages, securities, etc., of the school treasurer gives discretion to the board of trustees to carry such examinations to such an extent “as may seem to said board necessary.”
    3. Actions and defenses—when no action lies in favor of bondsmen of school treasurer against school trustees. An action does not lie in favor of bondsmen for a school treasurer against the board of trustees of schools for the amount such bondsmen were compelled to pay on default of the treasurer on the ground that it is the duty of such trustees to examine and record the true condition of the accounts of the treasurer of the board, and that failure so to do renders them liable to the bondsmen for the amount paid.
    Error to the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 18, 1913.
    Wilson & Wall, for plaintiffs in error.
    John T. Inghram and T. B. Pape, for defendants in error.
   Mr. Justice Creighton

delivered the opinion of the court.

The plaintiffs' in error became securities upon the bond of T. N. Crewson, as school treasurer of township 3 south, range 7 west, in Adams county, Illinois. Said treasurer defaulted in the sum of $3,500, and the plaintiffs in error, as sureties on said bond, were required to pay the same. Thereupon they brought this suit to recover against the defendants in error, personally, who were acting as trustees of schools of said township at the date of the execution of the said bond, averring, among other things in their declaration, that said Crewson, before and at the time of his appointment as such treasurer, was duly qualified as such officer and had been for two years immediately prior to said appointment, and that when such appointment was made, succeeded himself as such treasurer, and was required by the said trustees to execute a bond with sufficient sureties; that the defendants in error then failed and refused and neglected to examine the notes, mortgages, securities, papers, moneys and effects of said treasurer, and then and there failed, carelessly and negligently, to examine the accounts and vouchers of the said treasurer, but then entered in the book of such defendants in error, as trustees, which was kept for the recording of their official acts and proceedings, a statement that the books and papers of said treasurer had been examined by the defendants in error and found to be correct, when in truth and in fact they had not made such an examination; that after said entry was made, said treasurer applied to the plaintiffs in error to become sureties on said treasurer’s bond, and the plaintiffs in error, relying upon such statement so entered upon said record, became sureties as aforesaid; that it afterwards became manifest that said treasurer was, at the time of his appointment, a defaulter and that the defendants in error knew the same, or, by the exercise of due care, might have known of such default; that the plaintiffs in error were after-wards required to pay the sum aforesaid in consequence of his default.

General and special demurrers were filed to the declaration, and by the court sustained. The plaintiffs in error having elected to stand by the declaration, the court entered judgment against the plaintiffs in error for the costs of the proceeding, whereupon this writ of error was sued out, thereby bringing the record before us for review.

The chief contention of the plaintiffs in error is, that it was the duty of the defendants in error, when acting as school trustees, to examine and record the true condition of the accounts of the treasurer of the board, at all annual meetings and all semi-annual meetings of the board, and that the failure so to do rendered the defendants in error liable to the plaintiffs in error for any loss sustained by them as sureties on the defaulting treasurer’s bond.. The cases of City of Chicago v. Seben, 165 Ill. 377 and People v. Bartels, 138 Ill. 322, are cited by counsel as authorities supporting their contention.

In the first case the action was to recover for a personal injury received by Seben because of negligence in constructing and maintaining a certain catch basin belonging to the city of Chicago. It will be observed this suit was for the negligent act of the city, and not a suit against an officer of the city in his individual capacity.

In the second case, the suit was upon the bond of a notary public for taking and certifying to an acknowledgment which proved afterward to be a forgery, and resulted in serious loss to the plaintiff therein.

We do not regard either of these- cases as directly bearing upon the question involved in this case.

Mr. Cooley, in his work on Torts, vol. 2, p. 756, lays down the rule in this class of cases as follows: “The rule of official responsibility, then, appears to be this'': That if the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public, not an individual injury, and must be redressed, if at all, in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it properly, is an individual wrong, and may support an individual action for damages.”

In Tkroop on Public Officers, sec. 708, it is said: “So a private action cannot be sustained for failure to discharge a duty owing exclusively to the public, even by a person specially injured thereby. Or, as a learned and distinguished writer gives the rule, where a duty neglected or improperly performed ‘is a public duty exclusively, and no single individual of the public can be, in any degree, legally concerned with the manner of its performance, a private action will not lie.’ ”

In the case of Gage v. Springer, 211 Ill. 200, this doctrine is supported and cited with approval, and it is there said: “The failure of a public officer to perform a public duty can constitute an individual wrong only when some person can show that in the public duty was involved also a duty to himself as an individual, and that he has suffered a special and peculiar injury by reason of its nonperformance. ’ ’

The liability of a public officer to answer in damages to a private individual for a failure to perform the duties imposed upon him by law, depends upon whether the injury is of a public or private character. If it be of a public character, such as the citizens of a municipality may receive in common, or a duty owing to the citizens in common, then an action on the part of an individual will not lie. If, however, the failure results in special damages to a private individual he may have cause of complaint.

In the case under consideration, the duty devolving upon the defendants in error, as school trustees as complained of, is set forth in the following language of paragraph 59, of chapter 122 (Hurd’s Stat. 1908), being the statute in force at that time, namely: “At each semi-annual meeting, and such other meetings as they may think proper, the said township board shall examine all books, notes, mortgages, securities, papers, moneys and effects of the corporation, and the accounts and vouchers- of the township treasurers, or other township school officer, and shall make such orders thereon, for their security, preservation, collection, correction of errors, if any, and for their proper management as may seem to said board necessary.”

From a careful reading of the above section defining the duties of the trustees as to notes, mortgages, securities, etc., we conclude that the action of the trustees in reviewing such notes, mortgages, securities, etc., in the hands of the treasurer, is a duty imposed by statute for the purpose of preserving and securing the funds belonging to the township, and has no reference to any duty to any particular individual. It is a method by which the school funds are . sought to be secured for the benefit of the public schools.

It will be further observed that the statute gives discretion to the board of trustees about the manner and extent to which they may carry these examinations, namely: “as may seem to said board necessary.” This leaves the question largely to the sound discretion of the board of trustees. While the statute contemplates that the records of the board of school trustees and treasurer shall be public and open to inspection by all interested persons, yet, it can scarcely be said that the requirement of the statute is for the purpose of protecting those who may choose to become bondsmen for the school treasurer, but rather for the benefit of the general public.

In Stern v. People, 102 Ill. 541 (550) our Supreme Court said: “It has long been "held by the Supreme Court of the United States that statutory directions to public officers are given for the security and convenience of the government, and to regulate the conduct of its officers, but that, being directory, they form no part of the contract with the surety. ’ ’

The same doctrine is announced in Ramsay’s Estate v. People, 197 Ill. 572.

We are of the opinion the action of the circuit court in sustaining the demurrer was correct, and the judgment is affirmed.

Affirmed.


text:
    Belle Lanham, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Damages—evidence. Where plaintiff in attempting to board a passenger car attached to a freight train was thrown against the side of the car, evidence that plaintiff did not consult a physician until three or four weeks after the accident and that though she then consulted several physicians she made no complaint to any of them as to a miscarriage is insufficient to sustain plaintiff’s contention that a miscarriage resulted from the injury.
    2. Carriers—degree of care required. Where plaintiff was injured while attempting to board a passenger car attached to a freight train, an instruction that the railroad company is held to the same accountability for the negligence of its servants resulting in injury to a passenger for hire, who is lawfully and properly on a freight train, as governs its liability for such negligence when the transportation is upon a train devoted exclusively to passenger service, is erroneous since it fails to recognize the mode of conveyance adopted and the practical operation of the road.
    3. Carriers—degree of care toward passengers. The highest degree of practicable care or diligence must be adopted that is consistent with the mode of transportation used.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed April 18, 1913.
    Charles L. Capen, for appellant; John Cr. Drennan, of counsel.
    M. A. Brennan, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action on the case brought by the appellee against the appellant company, to recover for personal injuries alleged to have been sustained by appellee while attempting to board a coach on the rear of a freight train on appellant’s road.

Upon a hearing the jury returned a verdict against the appellant and in favor of the appellee, in the sum of $3,000.. After overruling motions for new trial and in arrest of the judgment, the trial court entered a judgment in the amount of the verdict, and thereupon this appeal was granted and has been perfected.

The injury complained of occurred at Colfax, a station on the road of the appellant, on the 26th day of October, 1910, while appellee was attempting to board a passenger coach on the rear end of a freight train. While the evidence as to the occurrence is somewhat conflicting as to the material points connected with the accident, it is uncontroverted that appellee had gone to the station of appellant in advance of the approach of the train, and, together with a number of other passengers, came forward to board the train immediately after the coach came up to the station. One or more passengers immediately got aboard in advance of the appellee. Just as appellee had taken hold of the hand rail and placed her feet upon the lower step of the coach, the train lurched forward and then moved back a distance of from two to four feet, appellee lost her balance and her feet slipped from the step and fell to the ground and her body went against the side of the coach and she held on to the railing with her hand or hands. She was immediately assisted by a gentleman present and went aboard the train, and complained of being frightened. As she was assisted aboard the train it was standing still and remained so for a short space of time, variously estimated at from one and one-half to fifteen minutes.

It is contended by appellant that the only motion of the coach after it drew up in front of the station was the natural rebound incident to the stopping of the engine, the forward movement of the train against it and the rebound of from two to two and one-half feet, and that appellee attempted to enter the train before the coach had stopped, or at the time of the rebound immediately after stopping. The appellee contends that when she first sought to board the coach it was standing still upon the track, but that before she had time to get aboard, the car lurched backward and threw her against the side of the car and caused the injury complained of.

Mrs. Dunlap, a witness, testified that she was approaching the train from the station behind appellee and just prior to her effort to board the train; that as appellee took hold of the railing and placed her feet upon the lower step of the car, the car lurched backward three or four feet, throwing appellee’s feet upon the ground; that a gentleman picked her up and helped her to board the car, and that the .witness then boarded the car which remained standing on the track for ten or fifteen minutes; that the movement of the train backward and then forward, left the coach near where it first stopped; that she knew nothing about the “slack” of trains, but had seen other trains stop that way.

Grace Waunderland and Mary Strickland each testified that they were approaching the depot crossing just as the freight train pulled across the walk before it stopped; that they went around the rear of the train, and just then appellee stepped up and took hold of the hand rail on the rear of the coach, and that just as she stepped upon the step of the car the train stopped and there was a jar which threw her feet off the step and that-she still had hold the hand rail with one hand.

The appellee contends that the train pulled up in front of the station and the coach stopped still and that other passengers went aboard the train and that she attempted to follow; that when she had taken hold of the rail and had her feet upon the lower step, the train made a “jiggle” and threw her against the car; that the motion of the car was backward and then forward; that she could not tell how long the train remained standing still after she went into the coach.

B. M. Judd, a merchant at Colfax, who chanced to be passing near the train at the time of the accident, testified that the train pulled up in front of the station and was standing there when he saw appellee attempt to get aboard the car; that she had hold of the railing and one foot on the step of the car when the train came back and threw her; that he picked her up and put her aboard the car and that in about two minutes the train pulled out.

Upon the question of whether appellant was guilty of negligence at the time of the injury, and as to whether or not appellee was, at the time, in the exercise of due care and caution for her own safety, the evidence is, to say the least, very unsatisfactory.

As to the extent of the injury complained of, the evidence is also conflicting and unsatisfactory.

First, the appellee, in addition to the injury to her arm and shoulder, complains that at the time of the injury she was pregnant, having become so about three months before the accident, and that in consequence of such accident a miscarriage resulted and she was sick for a long space of time, and was under the care of a physician all the time and in a hospital at different times, and as a result is now permanently disabled.

The facts disclosed by this record upon that point are, that on the 26th day of October, 1910, the injury complained of occurred. On Sunday following, she contends, a miscarriage took place. At the time of the alleged miscarriage there was no physician present of consulted, the only person present at the time being a daughter-in-law of appellee. The symptoms and evidence of miscarriage stated by appellee and her daughter-in-law, were severe pains and the passage of blood clots, and afterwards a flooding, and that appellee was confined to her bed for the space of between two and three weeks; that appellee consulted Dr. Lang-staff within three or four weeks after the miscarriage, and visited Dr. Schultz early in November after the accident, and Dr. McIntosh about the middle of December, and went to see Dr. Horine on the 7th day of December, but the record fails to show that appellee made any complaint to any of these physicians as to the miscarriage, but did complain as to an injury to her arm and shoulder and received treatment for same, except that she told Dr. Horine she had become unwell the day before, and asked him to treat her for excessive discharges; that on the 31st of December of the same year, appellee called upon Dr. Myer, of Bloomington, and there, for the first time, made known her contention that a miscarriage had occurred, and that the doctor prescribed for and treated her at intervals until February, and advised her to go to the hospital, where she went and remained eight or ten days, and then the doctor found blood clots and flooding, and again in early spring, she was in the hospital under the treatment of the same physician; that the daughter-in-law who attended appellee at the time of the alleged miscarriage, testified that there was no foetus or other substance, except blood clots and blood passed, and that she removed and washed the cloths.

Dr. F. C. Vandervort, a physician of twenty-four years’ experience, testified, as an expert, as follows: “If there had been a miscarriage on Sunday after the accident and the plaintiff was three months pregnant, there would have been a discharge of the foetus and afterbirth; that the foetus would have been of the shape of a little man or woman two or three inches long, with head the size of a walnut. ’ ’ Dr. Horine also testified to the same effect. If a miscarriage had occurred within a week after the accident, it is hardly reasonable to suppose that in the various consultations she had with physicians, appellee would not have disclosed the full extent of her injury. It will be remembered that appellee called upon Dr. Schwartz in November and complained to him that she had received an injury to her arm and shoulder in the accident, and he told her to go to appellant’s physician; that in December, on the 7th day of that month, appellee went to Dr. Horine and explained to him the nature of the injury to her arm and shoulder, and he treated her for same. In the conversation with him at that time he suggested to appellee that she file a claim against appellant for the injury, and appellee said, “No, it was not serious, and beside that, that appellant was not to blame.” About the middle of December appellee consulted Dr. McIntosh and complained to him of the injury to her arm, saying nothing at all about the miscarriage.

From this record we are unable to accept the theory of appellee’s miscarriage in consequence of the injury complained of.

Under this state of facts, it was very important and necessary to the ends of justice, that the law be given to the jury accurately. Instruction No. 2,' given on behalf of appellee, is as follows: “The railroad company is held to the same accountability for the negligence of its servants resulting in injury to a passenger for hire, who is lawfully and properly on a freight train, as governs its liability for such negligence when the transportation is upon a train devoted exclusively to passenger service.”

It is contended by appellant that the giving of this instruction was error.

In Tuller v. Talbot, 23 Ill. 357, in discussing the question of the degree of care required at the hands of a carrier of passengers for hire, the court lays down the following rule: “The highest degree of practicable care or diligence shall be adopted that is consistent with the mode of transportation used.”

In North Chicago St. Ry. Co. v. Polkey, 203 Ill. 225, the court held that a street railway company owes the highest degree of care for the safety of its passengers consistent with the mode of conveyance employed, the practical operation of its road and the exercise of its business as a carrier.

In Tri-City Ry. Co. v. Gould, 217 Ill. 317, the court, in speaking of an instruction there under consideration said: “The second instruction is erroneous, because it does not limit the degree of care, required of the carrier, to such care as is consistent with the practical operation of the road. * * * The instruction should have read as follows: ‘The defendant, through its servants in charge of such car, was required to do all that human care, vigilance and foresight could reasonably do, in view of the character and mode of conveyance adopted, and consistently with the practical operation of the road, to safely carry him as such passenger. ’ ”

In Ratner v. Chicago City Ry. Co., 233 Ill. 169, both of the above cases quoted from are cited with approval.

Instruction No. 2, here involved, under the rule laid down by our Supreme Court, must be held to have been improperly given because of its failure to recognize the mode of conveyance adopted and the practical operation of the road. This instruction is calculated to impress the jury that the same certainty and accuracy in starting and stopping and the comfort and safety attends one who is traveling upon a freight train as attends upon the operation of a passenger train. It fails to recognize the purpose and object of the operation of a freight train and the practical operation of the railroad.

In view of the amount of the judgment, the conflict in the evidence and the contest upon the facts, the instructions should have been accurate, clear and free from anything tending to confuse and mislead the jury.

Because of the above error the judgment is reversed and the cause will be remanded.

Reversed and remanded.


text:
    Clarence Fitzsimmons, Appellee, v. Perry Snyder, Appellant.
    1. Automobiles—highways. Sections 10 and 16 of the Motor Vehicle Law of 1911 relating to the movements of automobiles on a public highway contemplate the public use of every public highway for any lawful purpose.
    2. Negligence—where domestic animals are driven upon highway. It is not negligence per se for the owner of domestic animals to drive them unhaltered upon the public highway.
    3. Automobiles—statutory provisions. Sections 10 and 16 of the Motor Vehicle Law of 1911, relating to the movements of automobiles on a public highway, do not require that all domestic animals taken upon the public highway shall be ridden, driven in harness or led with halters, but a drover with domestic animals has a right upon the public highway and anyone operating an automobile should have proper regard for such traffic.
    4. Automobiles—frightening loose horses. Where defendant drives an automobile through a narrow lane where plaintiff is driving a number of loose young horses and fails to slacken his speed though plaintiff waved for him to stop and the horses are frightened so that one runs into a wire fence and is killed, defendant is guilty of negligence and it is immaterial whether he saw plaintiff's signals or the horses, since by the exercise of reasonable care he might have seen.
    Appeal from the Circuit Court of Vermilion county; the Hon. E. B. E. Kimbrough, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 18, 1913.
    Rearick & Meeks, for appellant.
    Holmes, Milemore & Levin, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action on the case brought by appellee against appellant to recover the value of a horse alleged to have been injured by reason of the negligent manner of driving an automobile by appellant in the public highway, which injury resulted in the death of the horse.

The declaration is based upon the provisions of sections 10 and 16 of the Motor Vehicle Law of 1911, and consists of three counts, and, in substance, charges that appellant drove his automobile without using reasonable care and precaution to avoid frightening the horses of appellee; and without stopping or turning to one side and drove his machine among the said horses upon the public highway at a speed of thirty miles an hour, thereby frightening said horses and endangering the life and limbs of said horses, and thereby caused the injury complained of.

Appellant pleaded the general issue, and the cause was heard by the court and a jury, resulting in a judgment in the sum of $125 in favor of appellee, from which judgment this appeal has brought the record before us.

The preponderance of the evidence in this record shows that on the 13th day of August, 1911, appellee, his father and two brothers, were driving five head of loose young horses north upon a public highway in Jamaica township, Vermilion county, and while passing through a lane with a hedge upon the east side and wire fence upon the west side thereof, appellant drove his automobile into the highway, coming south, about eighty rods distant, running at a speed of from 18 to 20 miles per hour, and when he reached a point about one hundred yards from the horses, appellee and his father called to appellant and waved to him to stop; that appellant failed to stop or slacken his speed, but speeded on, frightening the horses, crowding them to the right and left, and causing one of them to jump through a wire fence whereby it became so lacerated and injured that it died from the effect thereof.

The parts of the statute involved in this case are paragraphs 269j. and 269p. of chapter 121 (Hurd’s Eev. Stat. 1911) and, so far as applicable, are as follows: 269j. “No person shall drive a motor vehicle on any public highway at a speed greater than is reasonable and proper, having regard to the traffic and the use of the way, or so as to endanger the life or limb or injure the property of any person.” 269p. “Upon approaching a person walking along or upon a public highway, or a horse or horses, or other draft or domestic animal or animals, being ridden, led or driven thereon, the operator of a motor vehicle or motor bicycle, shall give reasonable warning of his approach, and use every reasonable precaution to avoid injuring such person, or frightening or injuring such horse, horses, or other draft or domestic animal or animals, and, if necessary, stop his said motor vehicle or motor bicycle until he can safely proceed.”

From a careful consideration of these sections it will be seen that the law relating to the movements of automobiles on a public highway, has regard to the traffic or use ordinarily made of such public highway. A drover with cattle or horses, mules, sheep, or any other domestic animals, has a right upon the public highway, and any one operating an automobile over the same public highway should have proper regard for such traffic. This law contemplates the public use of every public highway for any lawful purpose.

Our road law, however, has restricted the drivers or riders of horses to reasonable speed, so as not to endanger the life, limb or property of any one who may be upon said public highway. The sections above referred to are intended to impose the same reasonable restrictions upon one who drives an automobile or other motor vehicle upon the highways of the state. To our minds the restrictions are not only reasonable, but they are necessary to the public welfare and the proper use of the public highways.

We cannot agree with the contention of appellant that the statute under consideration required that all domestic animals taken upon the public highways should be ridden, driven in harness or led with halters, or in some manner be restrained. Neither can we agree with appellant that it is negligence per se for the owner of a domestic animal to drive the same unhaltered upon the public highway. The provisions of the sections herein qnoted and other provisions of the road law, contemplate the safe and secure passage of domestic animals and automobiles upon the public highways, and in order to secure that result, have imposed limitations as to speed, etc.

From the facts above stated in this case, had the appellant observed the limitations intended to be enforced against him, the accident would not have occurred, and no liability would have resulted. It was negligence upon the part of appellant to drive through the herd of horses, when confined in a lane, at a speed of from 18 to 20 miles- an hour. It was negligence, and a violation of law, for appellant to fail to stop when he saw the action of his machine and the speed at which he was running, was- likely to endanger the property in question.

Whether appellant did see the herd of young horses, or whether he did see the signals or hear the calls of the drivers of the animals, may be a question, but that he might have seen and might have heard, by the exercise of reasonable care, cannot be doubted.

Appellant urges as a further reason for reversal of the judgment, that the trial court erred in his rulings upon the instructions.

We have carefully examined the instructions as to which complaint is made, and we find no error of reversible character therein.

For the reasons given, we are constrained to affirm the judgment.

The judgment appealed from is, therefore, affirmed.

Affirmed.


text:
    Gertrude P. Cronch, Administratrix, Appellee, v. The Peoria, Lincoln & Springfield Traction Company and the Illinois Traction Company, Appellants.
    1. Railroads—crossing accidents. Plaintiff’s intestate was killed when a wagon on which he was riding was struck by defendant’s electric car. The wagon loaded with iron was stopped just before reaching the tracks at the place of the accident, which was not a public crossing, so that the iron could be readjusted. Plaintiff’s intestate stood on the load to hold it in place and was looking down at it when the driver started across the tracks. He knew the place to bo dangerous and had warned his men to be careful. The iron on the wagon was making a loud noise and he knew he could not well get off the right of way if a ear came, since the gate on the opposite side of the track was closed. Held, that intestate was not shown to have exercised due care.
    2. Negligence—burden of proof. In an action for wrongful death of one killed when a wagon on which he was riding was struck by an electric car of defendant, it must be alleged and proved that deceased was, at the time of the accident, in the exercise of due care.
    Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Harris, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed with finding of fact.
    Opinion filed April 18, 1913.
    Rehearing denied May 16, 1913.
    King & Miller, for appellants.
    Humphrey & Anderson and Beach & Trapp, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action on the case brought by appellee, as administratrix of the estate of Dellon Cronch, deceased, against the appellant companies, to recover damages for the death of said Cronch, which was alleged to have been caused by the negligence of the appellants.

A hearing before the court and a jury resulted in a verdict for the appellee in the sum of $10,000, upon which judgment was rendered by the court, after overruling a motion for a new trial. This is an appeal from that judgment.

The declaration alleged, in substance, that the appellants owned a certain electric railroad and operated cars thereon, and that the appellant companies, on the day of this accident, negligently drove, handled and operated a certain electric car at the time in question; that the appellants drove the car at a reckless and dangerous rate of speed without having the car under control as it approached the crossing where the accident occurred, and without keeping a careful lookout ahead to see if any person engaged in unloading freight in a certain car on the siding at said crossing, were about to cross said crossing; and without giving any warning by bell or whistle or other signal of the approach of the car; that by reason of the negligence of said appellants, appellee’s intestate was, while in the exercise of due and ordinary care for his own safety, and while driving over said crossing, hit by said car and injured, and from which such injury died, etc.

To the declaration each of the appellants filed a plea of the general issue, and the appellant Dlinois Traction Co., also filed a special plea in bar, denying the ownership and operation of the said railroad.

The substantial facts to be gathered from a careful review of this record are, that on the 29th day of May, 1911, appellee’s intestate and other men in the employ of the Decatur Bridge Company, were working at a place called Wilmert siding, on the line of the Illinois Traction System. Appellee’s intestate was in charge of the men, and they were' engaged in unloading a car of bridge iron from a car which had been set out on the side track, and said iron was to be conveyed to some point away from the line of the road for the purpose of building a bridge. The car of iron had been shipped over the Illinois Traction System and set out on this side track, and on the day in question appellee’s intestate and the other men had arrived and, having procured two teams and wagons, proceeded to remove the iron from the car. The place where the accident occurred was at a crossing over the main track of the railroad, but it was not an open public crossing and was not in a village or city. There was a private road to the public highway going east from the track, which was used by persons having business to transact with the railroad company there, but there was a gate which was on the east side of the right of way which had to be opened and passed through, before one could go from the right of way to the public highway. There was no way to get to the side track except through this lane from the east side, and there was no highway or road on the west side of the right of way. The railroad, at this point, runs north and south. The switch track was on the west side of the main track. Between the main track and the side track the poles of the company were located, carrying thereon the power wires, signal wires, cross arms, etc. These poles were seventy or eighty feet apart.

Appellee’s intestate and his men, with the two teams and wagons, started in the work of removing the bridge iron from the car, and, while they were working, on the morning of the day of the accident, he warned the men to be careful and look out for the cars. Two loads of the iron were removed in the forenoon, and, at about 2:15 in the afternoon, the men, having loaded one wagon and it being driven to one side, started to load the wagon driven by a Mr. Martin. This wagon was backed up, on the switch track paralleling the same, so that the wagon could be loaded from the end of the car, then the team was hitched on to it, when loaded, and it was driven along the switch track, bumping along on the ends of the ties, until it reache'd a point near where it was desired to cross, and then turned out and came up to the main track at right angles. Just before reaching the main track it was discovered that the iron was slipping off of the wagon, and then appellee’s intestate called to the man working with him to push the iron up on the wagon and then get on and hold the iron down until they could get it across the main track. When the iron was placed back on the wagon, appellee’s intestate, a Mr. Smith and the driver, Mr. Martin, got on the wagon and stood on the iron and held it in place with their feet. At this time the gate on the east side of the right of way, through which they would have to pass, was not open. The men stood on the iron, holding it in place by their weight, and Were looking down to watch the iron. Mr. Martin, the driver, was standing about over the front axles of the wagon, with appellee’s intestate just behind him, with his hands on Mr. Martin’s shoulders, and Mr. Smith stood behind him with his hands on the shoulders of appellee’s intestate. At about the time the team pulling the wagon had cleared the main track and while the wagon was yet across the main track, a car from the south struck the wagon about the middle, and appellee’s intestate and Mr. Martin were killed and Mr. Smith injured.

The evidence of Mr. Malerich, one of the men working under appellee’s intestate, shows that after the wagon here spoken of had been loaded, Mr. Malerich, Mr. Smith and appellee’s intestate, remained in the car until the iron began to slip off the wagon, then they all went out, Mr. Malerich at the east door of the car, and he says that he then looked south and saw no car approaching, and that this was from two to four minutes- before the wagon was struck. After the wagon was righted, he says, he started to go across the main track to put some cots on the wagon, and that he then heard the trolley wires buzzing, stopped, looked around, saw a car about 300 feet away, coming at a speed of from 50 to 60 miles per hour, and hollered to the other men on the wagon, but the car came so fast they did not hear him.

Several witnesses testified that they heard no warning given of the approach of the car, while others, including the motorman and the conductor of the car, together with several passengers on the car, said that they heard some signal given, and the motorman testified that he sounded the danger signal just as he first saw the horses, and also that when 750 or 800 feet south of the siding he gave a siding whistle as a signal to the conductor to know whether or not to stop at the siding, and that the conductor signaled him not to stop.

It is probably true that the danger signal Was not sounded until the horses were sighted by the motorman. Not being a public crossing there could be no reason for a signal until the motorman should discover some reason for giving it. The car was, at the time, going at a rate of from 45 to 50 miles per hour, and the motorman testified that as he gave the signal he threw on the emergency brake, but the momentum of the car was too great to cause much loss of speed before the wagon was' struck.

"When the wagon was struck by the car, appellee’s intestate was riding in the wagon, standing up, but he was not looking for any car that might be coming, but was looking down watching the iron. He knew this to be a dangerous place, and warned his men, only that morning, to be careful in crossing and watch for cars before crossing. He knew he could not well get off the right of way if a car should come, as the gate on the east of the road was closed.

It is clear from the evidence that if the men on the wagon had used care, before going on the main track, they would have seen and heard the approach of the car. The iron upon the wagon was making a noise, and these parties knew cars were likely to pass there at any time. The fact the iron on the wagon was making a noise made it more important than ever that they should take some precaution for their own safety before driving upon the main track, as the noise of the rattling iron might, or could, drown the sound of an approaching car. While the law does not require that every person who is about to go across a railroad track shall first stop, look and listen, yet, “A failure to look or listen, especially when it appears affirmatively that looking or listening might have enabled the party injured to see the approaching train and thus avoid the injury, is evidence tending to show negligence.” Chicago, R. I. & P. Ry. Co. v. Jones, 135 Ill. App. 380.

That the crossing at the point was not a public crossing, and that this siding Was not a regular stopping-place for all cars on the line, was known to appellee’s intestate. And, even if it was the duty of the appellant to stop at this point, or to give the usual public crossing signals, this did not relieve appellee’s intestate from the duty of using due care for his own safety. In the case of Schlauder v. Chicago & Southern Traction Co. 253 Ill. 154, the court, in discussing this question, said: “The presumption (that every person will perform a duty imposed by law) does not absolve one from exercising such care and prudence as a reasonably prudent person would under the same circumstances.”

It was a material allegation in the appellee’s declaration that the deceased was, at the time of the accident, in the exercise of due and reasonable care for his own safety. And it was also necessary, in order that a recovery might be had, that this allegation should be proven by the evidence. We are of the opinion the evidence fails to establish and support this allegation of „ the declaration.

For the reason herein stated, the judgment will be reversed.

Reversed ivith finding of fact.

Finding of fact: We find, as a fact that at the time of the injury to appellee’s intestate, he was not in the exercise of due care for his own safety.