text:
    James Harris, Appellee, v. Atlantic-Pacific Stages, Inc., Appellant.

      Heard in this court at the October term, 1930.
    Opinion filed January 19, 1931.
    Leahy, Saunders & Walther, Pope & Driemeyer and Lyon Anderson, for appellant.
    Martin M. Drury and J. D. Leritz, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

This is an action of trespass on the case brought by appellee against the appellant for sickness suffered by appellee by reason of the alleged wrongful ejectment from a restaurant, claimed to have been used by defendant as a waiting room or depot for its passengers.

The appellee filed an ordinary negligence declaration, to which appellant filed a general issue and two special pleas. Verdict of the jury was for the appellee in the sum of $300, which judgment appellant seeks to reverse by this appeal.

On the evening of October 5, 1929, appellee purchased a ticket at Sikeston, Missouri, on defendant’s bus line, for Bast St. Louis, Illinois. The ticket office was located in the City Cafe and notice of its location was evidenced by two boards setting on the sidewalk in-front of the restaurant, upon one of which was placed the words, “Atlantic-Pacific Stages, Inc.” On the other appeared the names of the stations and the bus fares. A post in front bore the sign, “City Cafe” and below this another sign, “Atlantic-Pacific Depot.” On the window of the cafe was painted “Atlantic-Pacific Depot.” On the inside of the restaurant and on the left-hand side was a cage over which appeared the sign, “Ticket Office — Purchase Tickets Here.”

In substance appellee testified that about 8 or 9 o’clock on the evening in question he entered the cafe and purchased a ticket on appellant’s bus line for East St. Louis, Illinois, being attracted to the bus depot by the signs above described; that he paid $3.75 to the man in the cage whom he identified as Monroe Melton, owner of the cafe; that several chairs were placed in the front of the cafe and used by passengers waiting for the busses; that appellee, after purchasing ticket, sat down on a chair where other passengers were waiting and Monroe Melton approached him and lifted appellee up by the coat and shoulder and said, “We don’t allow any niggers to sit in here”; that appellee replied, “What am I to do?” and Melton said, “You will have to roam the streets until the bus runs. ’ ’ That at the time it was drizzling rain and cold outside; Appellee returned to depot about 11:20 p. m. for the purpose of catching the 11:30 bus and was. informed that the bus would be delayed and would not arrive until 2:00 or 2:30 a. m.; that plaintiff then asked for a place to wait and that Melton told him to go out into the back yard, and his daughter, Ruby Melton, gave appellee a box on which he sat until 2.30 a. m.; that the weather was damp, misty, rainy and cold; appellee further testified that he requested Melton to take back the ticket and return his money so that he could take a Greyhound Bus, but that Melton refused the request; that the ticket purchased by appellee had printed on it “Atlantic-Pacific Stages, Inc.” and that Melton wrote on the ticket at the time of sale, “$3.75” and the destination, “East St. Louis, Illinois”; that the'ticket was accepted by driver of bus and he was carried to St. Louis, Missouri, and there was transferred to another bus which conveyed him to East St. Louis; that appellee got damp and chilled, caught a cold and suffered from la grippe; received medical care, was disabled about eight weeks from his employment where he earned $30 a week.

For the appellant Monroe Melton denied ordering appellee out of the restaurant and testified he had never before seen appellee; that he had a place in his kitchen where colored people could wait for the bus; that he had no agreement with appellant for space in his restaurant and that his arrangement for ticket office was with his daughter, and that he was never employed by the bus company. His daughter, Ruby Lee Melton, testified that her father never sold tickets and could not read or write; that the bus company paid no rent for the space it occupied and that her father gave her the space for the ticket office and permitted the passengers to use the chairs in front while waiting.

It is first contended that the court erred in refusing to direct a verdict in favor of appellant, on motions made at the close of appellant’s evidence, and again at the close of all the evidence, because the evidence shows no relationship of master and servant between appellant and Monroe Melton, and no control over his actions; that the acts complained of were not committed by Melton as ticket agent of appellant, or with reference to any of its business, but entirely on his own account.

Appellant’s motion raises the legal question as to whether or not there is any evidence at all in the record fairly tending to support the verdict. Tested by this rule, < we believe the court did not err in refusing to grant the motions.

The conduct of appellant in permitting signs to be placed on the sidewalk, on the post and on the window in front of the cafe announcing to the public that this was the “Atlantic-Pacific Stages” depot; the placing of the ticket office inside; the arrangement of the chairs for passengers were all facts for the consideration of the jury in determining whether or not appellant was estopped from denying the appointment and appropriate authority incident thereto. Appellee was rightfully in the room. When he went in to buy a ticket he was in no sense a trespasser. He had a right to enter and to presume that the persons in the open and notorious exercise of the duties incident to the business of appellant had been authorized by the company to do any act properly pertaining to the position occupied by them.

“The public cannot deal with the company in person, but only through its agents, and cannot be required to go and examine the written records of its proceedings to see who have been appointed to particular places, and with what specific powers they have been clothed. It is enough if the company suffers particular persons, openly and notoriously, to occupy particular places of responsibility in its service, without contradiction. Such acquiescence estops the company to deny the appointment, and appropriate authority incident thereto.” St. Louis, Alton & Chicago R. Co. v. Dalby, 19 Ill. 353; Chicago & Alton Ry. Co. v. Walker, 217 Ill. 605.

Adopting this rule of law as applying to the facts in this case, it was not error for the court to refuse instruction number four, or the offer of proof, offered by the appellant in attempting to show the terms of contract existing between appellant and Euby Lee Melton.

The judgment of the city court of East St. Louis will be affirmed.

. Affirmed.


source: Caselaw Access Project

author: Mr. Justice Fulton

license: Public Domain

text:
    Gruenenfelder Lumber Company, Appellee, v. Bessie Golden et al., Appellants.
    Heard in this court at the October term, 1930.
    Opinion filed January 19, 1931.
    Meyer & Meyer and Brown & Burnside, for appellants ; J. Gr. Burnside and Stanford S. Meyer, of counsel.
    C. E. Davidson, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

This appeal is brought hy the defendants, Bessie Golden and Albert Golden, husband and wife, from a decree finding a mechanic’s lien against certain real estate owned by the wife, and granting foreclosure of the same as prayed hy the hill. The cause was heard on exceptions to the master’s report which were overruled, the report confirmed and the decree entered in accordance with the master’s report.

On August 4, 1928, the appellee entered into a contract with Bessie Golden to furnish all the material for, and to construct a dwelling house on a lot owned by her at Pocahontas, Illinois. The contract was in writing and consisted of an agreement to construct said house according to certain plans and specifications furnished by appellants. The total contract price was to be the sum of $5,675. Four thousand dollars ($4,000) was paid in cash, leaving a balance of $1,675 on the original contract, and appellee claims it constructed certain extras totaling $619.10, and that the total unpaid balance due to it is the sum of $2,734.10.

The appellants claim that certain of the extras were never authorized by them, but the principal contention is that the house was never constructed and completed according to the plans and specifications, nor to the satisfaction of the' said Bessie Golden. In particular, the appellants claim that the roof leaked in certain places, that the windows leaked, that the plastering cracked, that the contractor used wood lath when the contract called for sheetrock or plaster board, that a large crack was left between the walk and the porch steps in the concrete construction, and that in other respects the contractor failed to comply with the plans and specifications. In support of their contention the appellants rely upon the testimony of the husband, a contractor, Clayton Riley and a plasterer, Roy Hair.

By agreement of parties the master was permitted to inspect the premises after the taking of the testimony. He made his report to the court, finding that a certain leak in the roof occurred in December, about a year after appellants took possession, caused by a snow and sleet storm; also a slight settlement of the heavy brick flue and certain cracks in the plastering which he found to be mostly hair cracks and allowed the appellants $50 on the total bill to cover damages caused by such defects. He further found that appellee was entitled to a lien for the balance due of $2,324.10.

When exceptions to the master’s report were heard, the court allowed the sum of $84.75 to be deducted from the bill of extras, awarded a lien to appellee for $2,289.35, and granted foreclosure in the decree entered.

The master in this case not only heard and saw the witnesses, but also had the opportunity of viewing the premises after hearing the proof, and a chancellor, as well as a court of review, should be slow in disturbing the conclusions of a master upon the facts, unless it can be said the master’s conclusions were clearly contrary to the probative force of the evidence. Meyer v. Levy, 249 Ill. App. 408; Gottschalk Const. Co. v. Carlson, 253 Ill. App. 520.

Upon a full examination of the testimony, this court is unable to say that the findings of the master and the decree of the court, founded thereon, are not supported by the greater weight of the evidence, or are contrary to its probative force.

The decree of the circuit court will therefore be affirmed.

Affirmed.


author: Mr. Justice Wolfe

text:
    Franklin County Building Association, Defendant in Error, v. Lavo Smith et al., Plaintiffs in Error.

      Heard in this court at the October term, 1930.
    Opinion filed January 19, 1931.
    D. F. Moore, for certain plaintiffs in error. T. I. Calloway, Pro Se.

    Moses Pulverman and Frank E. Trobaugh, for defendant in error; Tilman B. Cantrell, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

The Franklin County Building Association filed its bill against Lavo Smith et ah, to foreclose a mortgage in the circuit court of Franklin county, Illinois. The hearing was had on the bill and answer; a decree was entered in favor of the Building Association and against the defendants. A personal judgment was rendered against the defendants Lavo Smith, James D. Smith, Jr., and Ollie D. Smith, for a deficiency decree for the sum of $422.98.

The defendants below have brought the suit to this court on a writ of error, and the Franklin County Building Association has filed its briefs and arguments in this court. The Franklin County Building Association has filed a motion, verified by affidavit, to strike the purported certificate of evidence from the record and to dismiss the writ of error at the cost of the plaintiffs in error, for the reason that the certificate of evidence is not signed by the trial judge.

It is the contention of the plaintiffs in error that this motion should be overruled for the reason that the Franklin County Building Association has filed its statements, brief and arguments, and, therefore, has joined in error in this court, and it is not now in a position to raise the question that the certificate of evidence is not signed by the trial judge. The affidavit of the attorney for the Building Association shows that they did not have the record before them at the time they prepared their brief and arguments, but relied upon the abstract as prepared by the plaintiff in error, which shows the certificate of evidence has been signed by the trial court. They have since examined the original copy filed in the circuit court of Franklin county and discovered that the certificate of evidence has not been signed by the trial judge.

It has been repeatedly held that the bill of exceptions or the certificate of evidence that is not signed and filed as provided by law, on motion will be dismissed. In the recent case of Tibbitts-Hewitt Grocery Co. v. Cohen, 256 Ill. App. at page 459, the same question was before this court and the appeal dismissed.

Where the certificate of evidence is not signed by the trial judge, there is nothing to present to this court for review. The Building Association, by filing its brief and arguments, would not be prevented from making a motion to dismiss the writ of error. (Songer v. Pfeiffer, 199 Ill. App. 190, and In re Estate of Martha Janett, 199 Ill. App. 13.)

An examination of the transcript in this case discloses that,the certificate of evidence is not signed by the trial judge; nor was it filed in the time specified by the trial judge. We are of the opinion that the motion should be sustained.

. The motion to strike the purported certificate of evidence from the record and to dismiss the writ of error at the cost of the plaintiff in error is hereby sustained.

Motion sustained.


text:
    Henry W. Schroeder, Appellant, v. Adolph Goldsmith, Appellee.
    Heard in this court at the
    October term, 1930.
    Opinion filed January 19, 1931.
    Rehearing denied February 24, 1931.
    O. A. McNeill and Murray & Niehoff, for appellant.
    Maurice B. Johnston, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

The appellant started suit in a court of a justice of the peace in Clinton county, Illinois, to recover damages from the appellee for rent of certain premises and overcharge, as he claims, for threshing. The appellant in the court of the justice of the peace obtained judgment by default. The appellee prayed and perfected an appeal to the county court of Clinton county, and when the case was called for trial, filed a plea of set-off. The plea of set-off is in the most general terms denying that the defendant is indebted to plaintiff in the sum of $58.20, and claims the plaintiff is indebted to the defendant in the sum of $300, without specifying what it is for, or any particulars whatsoever. Trial was had before a jury which rendered a judgment in favor of the defendant upon his plea of set-off in the sum of $200. The original plaintiff, now appellant, brings the case to this court on appeal.

It is the contention of the appellee that he built a machine shed on the premises, which the appellant purchased at a sale from the trustee in bankruptcy of the Fred Wiese bankrupt estate; that the appellant has refused to let him remove this building, and, therefore, was liable for damages to the appellee for the reasonable value of the building. The court allowed this proof under the plea of, set-off.

Before the appellee could maintain such a defense the burden would be upon him to show that the appellant had notice of his right in the premises before he purchased the property at the trustee’s sale, as the presumption is that when one person makes an improvement on the property of another without the consent of the owner of the fee, the improvements, when made, become a part and parcel of the land and the title to them becomes vested in the owner of the fee, unless there are facts connected with the case to take it out of the operation of the general rule. (Mathes v. Dobschuetz, 72 Ill. 438, 441; Dooley v. Crist, 25 Ill. 551, 556.)

The appellant testifies that he had no notice of the building in question belonging to the appellee; that he bought it free and clear of all incumbrances except the taxes for 1927. Mr, A. D. Lager, an attorney at law, testified that he was present at the time of the sale and the terms announced were that the sale would be for cash, and that the farm was for sale as it stood with the buildings on it. An examination of the abstract of evidence shows that there is no witness who testifies that there was any notice whatsoever given of appellee Goldsmith’s claim of any right or title to this machine shed until after the sale of the property to the appellant.

Mr. B. J. Timmerman, the trustee in bankruptcy, who made the sale, testified that he thought that he might have announced that the building belonged to Goldsmith, but he was not sure, and he thought probably it was advertised that way in the newspaper. A copy of the newspaper containing the advertisement was introduced in evidence and it makes no reference whatsoever to any building being owned by anyone, except the owner in fee. The deed from the trustee to the appellant, and also a deed from Fred Wiese, the former owner of the property, to the appellant showed that the hereditaments and appurtenances belonging to the said land were conveyed to the appellant, Henry W. Sehroeder. The appellee’s testimony is that he had no conversation with the appellant until several days after the sale, and at the time Mr. Sehroeder claimed that he had purchased the building.

The evidence does not show that there was any contract whatsoever, either express or implied, between these parties whereby the appellant should pay the appellee anything for the building in question and it was not a proper matter for a set-off. There is no evidence to show that appellant had any notice whatsoever of the claim of the appellee for this building until after he had purchased the property.

For these reasons the judgment of the county court of Clinton county is hereby reversed and the case remanded.

Reversed and remanded.


author: Mr. Justice Boggs

text:
    Carl Bruce and Florida Bruce, Appellees, v. American Surety Company, Appellant.
    Gen. No. 8,266.

      Heard in this court at the October term, 1930.
    Opinion filed February 17, 1931.
    Hinoholiff, Miller & Thomas, for appellant.
    Hyer & Gill, for appellees.
   Mr. Justice Boggs

delivered the opinion of the court.

An action in debt was instituted by appellees against appellant in the circuit court of Winnebago county. The declaration consisted of one count and averred that on February 25, 1929, a judgment was entered against “one Fred Buchanan in the name of Bobbins Bros. Four Bing Wild Animal Circus, a corporation,” in the sum of $2,025, together with costs of $13.95; that on May 18, 1929', an execution was issued on said judgment, directed to the sheriff of Winnebago county, and on May 18, 1929, was levied upon an electric lighting plant for a circus, one truck and two steel flat cars; that on said 18th day of May, appellant and one Fred Buchanan jointly and severally acknowledged themselves to be bound to appellees in the sum of $4,075, conditioned that whereas an execution had been levied upon the articles above set forth and reciting that “the said Fred Buchanan claimed to be the sole owner of the property levied upon, in whose possession the property was found, being desirous of retaining the custody thereof according to the provisions of the statute. Now, therefore, if the said estate and property shall be forthcoming on June 22, 1929, at the Chicago, Milwaukee & St. Paul north side track in Bockford, Illinois, then this obligation to be void; otherwise to remain in full force and effect”; that said articles were not produced at said time and place or at any time since the giving of said bond, averring that a cause of action accrued, etc.

To said declaration appellant filed what it designated a plea in abatement, setting forth “that plaintiffs recovered a judgment in the circuit court of Peoria county in a suit entitled Carl Bruce and Florida Bruce v. Bobbins Bros. Big Four Bing Wild Animal Circus, a corporation, on February 25, 1929, for $2,025, with costs of $13.95”; that thereafter an execution was issued on said judgment, and was levied upon “certain goods, chattels and estate of defendant in such judgment, namely, Bobbins Bros. Big Four Bing Wild Animal Circus, a corporation; . . . that thereafter said defendant did execute its forthcoming or delivery bond” in the sum of $6,000 with one Thomas Webb as surety; that default was made in the return of said property as provided by said bond; that on July 14, 1928, Thomas Webb departed this life in Peoria county, Illinois, testate, with letters testamentary to certain named persons as the executors of said will; that suit was instituted against the estate of said Thomas Webb on said bond, and that judgment was rendered against the same for $2,121.55, and was allowed as a claim of the sixth class and ordered paid in due course of administration; that the net amount of said estate was in excess of $1,000,000, and was in the hands of said executors; that “the judgment rendered against the estate of the said Thomas Webb had been paid or will be paid in due course of administration.”

Said plea further averred that the present suit was not instituted by appellees or with their knowledge and consent, but was being prosecuted by said executors, under claim of subrogation. It is further averred in said plea that appellees for a valuable consideration “assigned and set over all their right, title and interest in and to such judgment ... to one C. W. Thurman”; that the averment that the present suit is being prosecuted by the executors of the last will of Thomas Webb, deceased, is “stated on information and belief,” prays judgment of the writ and that it be quashed.

The affidavit in support of said plea is also on information and belief as to such averment.

To said plea, appellees filed a demurrer, which demurrer was sustained, whereupon appellant made a motion for leave to amend its plea in abatement, which .motion was denied.

Thereafter appellant filed a plea of non est factum a plea designated a plea, of onerari non, a plea of nil debet and a plea of mol tiel record. Demurrers filed to each of said pleas were sustained. Thereafter by leave of court an amended plea of onerari non was filed, to which a demurrer filed by appellees was overruled, whereupon appellees filed a replication. A jury was waived and on the trial there was a finding and judgment in favor of appellees for $2,172.39 and costs. To reverse said judgment, this appeal is prosecuted.

It is contended that the court erred in sustaining the demurrer to the plea in abatement. Said plea and the affidavit in support thereof were in part on information and belief. Pleas of this character must be positively verified. King v. Haines, 23 Ill. 340, 341; Aetna Indemnity Co. v. Spencer, 135 Ill. App. 54-58. The court therefore did not err in sustaining said demurrer.

It is next insisted that the court erred in refusing leave to amend said plea. As a general proposition, neither at common law nor by statute was a plea in abatement amendable. Cook & Brownell v. Yarwood, 41 Ill. 115-118; Bacon v. Schepflin, 185 Ill. 122-130; Spencer v. Aetna Indemnity Co., 231 Ill. 82-85.

“To this general rule an exception is made in the case of pleas in abatement to the jurisdiction of the court of the person. A plea of this character is held to be not strictly a plea in abatement, but a meritorious plea, necessary to the protection of a substantial right granted by statute, and in such case the plea is amendable.” Spencer v. Aetna Indemnity Co., supra, 85, citing: Safford v. Sangamo Ins. Co., 88 Ill. 296; Drake v. Drake, 83 Ill. 526; Humphrey v. Phillips, 57 Ill. 132; Midland Pacific Ry. Co. v. McDermid, 91 Ill. 170. The case at bar does not come within the exception.

It is next insisted that the court erred in sustaining the demurrer to the plea of nul tiel record. This being a suit on a bond and not on a record, the court did not err in sustaining said demurrer. Mix v. People, 86 Ill. 329-332; Herrick v. Swartout, 72 Ill. 340-342; Arnott v. Priel, 50 Ill. 174-176; Rogers v. Barth, 117 Ill. App. 323-326.

No error was assigned on the ruling of the court, in sustaining the demurrer to the pleas of nil debet, and of non est factum.

It is next insisted that the court erred in admitting in evidence the record, of the judgment in Bruce v. Robbins Bros. Big Four Ring Animal Circus, and the execution issued thereon. It is insisted that said record does not tend to support plaintiff’s declaration in the cause here sued on, for the reason that Buchanan in no way appears to be connected therewith. The declaration in this case avers that a judgment was obtained against Fred Buchanan in the name of Bobbins Bros. Big Four Bing Wild Animal Circus, a corporation.

“A person may adopt and use, as indicative of his negotiable and other contracts, a business name or style entirely different from his own proper name, and when he, by himself or a general agent, enters into a negotiable or other contract under such adopted business name, he will be bound by such contract as effectually as though it had been entered into and executed under his own proper name and signature.” Union Brewing Co. v. Interstate Bank & Trust Co., 240 Ill. 454-461.

In such case, the adoptive name is equivalent in law to the actual name of the party. Union Brewing Co. v. Interstate Bank & Trust Co., supra, 462; Daniells on Negotiable Instruments, 4th ed. p. 307; Randolph on Commercial Paper, sec. 141.

This court, in Graham v. Eiszner, 28 Ill. App. 269, at page 273 said:

“It is well settled that any person may adopt any name, style or signature over which he may transact business and issue negotiable paper and execute contracts, wholly different from his own name, and may sue and be sued by such name, style or signature.” Citing Hypes v. Griffin, 89 Ill. 134; 1 Daniells on Negotiable Instruments, 3d ed. 303, 399.

It is also insisted that the court should not have admitted in evidence the bond here sued on, and certain other documentary evidence in connection with the levy of said execution. No valid reason is stated why such evidence was not admissible, and we know of none.

In connection with the offer of the judgment above referred to, one David Jarret testified on behalf of appellees that he was acquainted with Fred Buchanan; that Fred Buchanan was the proprietor of a circus known as the Robbins Bros. Big Four Ring Wild Animal Circus; that he had been in the circus business under several different names, but had been using the name of Robbins Bros. Big Four Ring Wild Animal Circus for the last four or five years. He further testified that Buchanan was the owner of said circus and that it was not incorporated; that he was familiar with the equipment belonging to said circus, including the property levied on in this case.

It is insisted that the court erred in admitting said testimony. The only objection made in the trial court to this or any of the oral testimony was, that it was incompetent, irrelevant and immaterial. None of those objections were well taken.

One of the matters made prominent in the plea in abatement and in the affidavit in support thereof was that there had been a judgment against the estate of Thomas Webb, deceased, on the forthcoming bond signed by him; that his estate had net assets in the hands of his executors of over $1,000,000, and that said judgment had been paid or would be paid; that said judgment had been assigned to Thurman and that he was the present owner thereof; that appellees had no knowledge that the present suit was being prosecuted and that it was in fact being prosecuted by said executors.

The mere fact that a conditional judgment may have been rendered against the estate of Thomas Webb would not, prior to a satisfaction thereof, bar the prosecution of other means to collect said judgment. Neither would the fact that there had been an assignment of said judgment be a defense to the present suit. It is no concern of appellant as to who shall finally receive the amount if any is to be collected, as the record is sufficient to protect appellant from having to pay under said bond a second time.

None of the assignments of error, so far as argued by appellant, are well taken, and, there being no substantial error in the record, the judgment of the trial court will be affirmed.

Judgment affirmed.


author: Mr. Presiding Justice McSurely

text:
    Stephen Johandes, Plaintiff in Error, v. Chicago, Milwaukee & St. Paul Railroad Company et al., Defendants in Error.

    Gen. No. 33,522.
    Heard in the first division of this court for the first district at the December term, 1929.
    Opinion filed February 24, 1930.
    Charles C. Spencer, for plaintiff in error.
    M. L. Bluhm, C. L. Taylor and Marvin A. Jersild, for defendants in error; Sidney C. Murray, of counsel.

       This case which was formerly published as an abstract (256 Ill. App. 597) is now-directed by the court to be published in full,

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff, while driving his automobile on the night of March 2, 1924, eastward on 111th Street in Cook county, ran into the side of a freight train of defendants, receiving serious injuries. He brought, suit and at the close of plaintiff’s evidence the court directed the jury to return a verdict finding the defendants not guilty and judgment was entered on the verdict. Plaintiff seeks a reversal.

There are two railroad tracks running southerly crossing 111th Street, which runs east. On either side of the railroad crossing is a pole with the usual railroad crossing sign attached and on each of these poles is a kerosene lantern. Plaintiff, about midnight, was driving east on 111th Street approaching the tracks. There was evidence that the lamp on the west or near side of the tracks was not burning at this time. There were no gates nor watchman nor any device to guard the crossing except the aforesaid poles and lanterns. The crossing is in the open country and is at grade. The surrounding lands are swampy and flat. There are no hills or trees or buildings to obscure the vision of any one approaching the railroad crossing.

The absence of the signal light on the west side of the track to warn persons coming from that direction and the absence of any other safeguards might properly have been submitted to the jury as tending to prove negligent maintenance of the crossing.

The decisive question is whether or not the plaintiff was guilty of contributory negligence, as a matter of law.

All of the witnesses testifying for plaintiff say that it was a foggy night. One witness describes it as “a real dense fog.” Plaintiff at the time of the accident was 27 years old, a truck driver by trade. On the night of the accident he left his home about 5:30 or 6:00 o’clock, went to a friend’s house and got two others, James McDonald and Miss Thibeau; they then went to the house of Miss Thibeau’s brother, going west on 111th Street over the same railroad tracks where the accident subsequently happened. Plaintiff was famil- . iar with the locality and knew the location of the railroad crossing. They left the home of Miss Thibeau’s brother to return about 11 o’clock. The automobile was a one-seated Dodge car. Plaintiff sat on the left side driving the car; McDonald was to his right and Miss Thibeau sat on McDonald’s lap, facing forward. They drove south on Bidgeland Avenue and then turned eastward on 111th Street. The railroad tracks in question are a little over a mile and a quarter east of Bidgeland Avenue; 111th Street is a concrete paved road. When they struck 111th Street plaintiff turned on the dimmers of his two headlights. He also had a spot light which he used to see the edge of the road.

Miss Thibeau testified that as they approached the railroad crossing they were driving 15 or 20 miles an hour. Plaintiff testified it was 18 or 20 miles an hour. Both of them stated that they were looking for the railroad crossing. While they were thus moving along they ran into the side of a south-hound moving freight train of approximately 80 empty gondola cars, at about the 40th car from the engine. McDonald was killed and plaintiff received the injuries on which this suit is based. Plaintiff testified that, “With my spot light ahead of me as I approached the crossing, I could see about 25 feet. The dimmers didn’t amount to much. It was a Dodge machine and little dim lights; it is an awful low candle power. If I had bright lights on I could have seen 150 feet.” He again said, “I could see these cars 25 feet before I got to it. I could stop within 18 feet. . . . The reason I didn’t have my headlights on, ... I didn’t like to blind anyone. I knew we were approaching a dangerous place.”

We then have a situation of the plaintiff knowing that they were approaching a dangerous railroad crossing on a very foggy night but he keeps the dimmers on his headlights, although there is evidence (and that doubtful) of only one automobile approaching from the opposite direction which might require plaintiff to lower his lights, and this automobile was passed over a mile from the crossing, but the lights were ‘ ‘ dimmed all the while”'; that with his headlights on he could have seen 150 feet ahead of him; that even with the small spot light he could see 25 feet ahead of him, and that he could stop his automobile within 18 feet. This leads to the inevitable conclusion that he was heedless in failing to keep a proper lookout and in turning down his headlights and in the rate of speed at which he was approaching what he knew was a dangerous railroad crossing; and that such conduct prevented him from either seeing or hearing the passing freight train in time to have prevented the accident by stopping. Such conduct was negligence directly contributing to the accident and plaintiff could not recover damages.

We are well aware that usually questions of contributory negligence are questions of fact to be submitted to a jury, but this is not true of every case. In Metropolitan Trust & Savings Bank, v. Chicago, B. & Q. R. Co., 150 Ill. App. 407, where the driver was killed by running into the side of a train, it was held that the act of the deceased was “glaring and culpable negligence,” and that it was error to refuse a peremptory instruction finding the defendant not guilty, although the railroad company was guilty in not having a flagman at the crossing. A number of supporting cases are cited. In Fuller v. Peoria & Pekin Union Ry. Co., 164 Ill. App. 385, under somewhat similar circumstances it was said that the driver was guilty of contributory negligence in driving into the train.. Another like case is Fannin v. Minneapolis, St. P. & S. S. M. Ry. Co., 185 Wis. 30, where the plaintiff drove his automobile into the side of a standing freight train and it was charged that defendant was guilty in not properly protecting the crossing. The court said, even if defendant was negligent, “the plaintiff was himself negligent in so driving in the nighttime along a familiar highway, knowing of the existence and location of the railroad crossing, . . . and chargeable with knowledge of the possible presence of a train either standing on or moving over the crossing. ’ ’ And if, as claimed, a wall of smoke prevented plaintiff from seeing the train, “ordinary care required him to stop or substantially lessen Ms rate of speed before plunging on and into such obstruction.” In Phillips v. Davis, 3 Fed. (2d) 798 (C. C. A.), the opinion quotes from Serfas v. L. & N. E. R. Co., 270 Pa. 306, where it was held that it was the duty of one “traveling by night to have such a headlight as will enable him to. see in advance the face of the highway and to discover grade crossings, or other obstacles in his path, in time for his own safety, and to keep such control of his car as will enable him to stop and avoid obstructions that fall within his vision. ... We have never held darkness an excuse for failure to perform this absolute duty.” The opinion in the Phillips case also held that, if the plaintiffs had on their low lights as they approached a known railroad track, “the circumstance of darkness and proximity to a point of danger should have suggested the ordinary care of turning on the full lights for a moment. This duty, in the situation, was paramount to that of observing the dimmer' ordinance. The two duties were not in conflict. Increasing the light was but a natural precaution, yet it was one which involved the proper use of lights and, accordingly, the degree of care wMch the law required in the circumstances.” In Yano v. Stott Briquet Co., 184 Wis. 492, where the plaintiff drove his automobile into a standing freight car, it was held: “If the plaintiff was driving at the speed he said he was driving, had his lights-been on, he must have seen the obstruction in time to avoid it. ’ ’

These expressions and others of a similar nature are applicable to the instant case. If the plaintiff had his bright lights on, as the circumstances demanded and the law reqMred (Johnson v. Gustafson, 233 Ill. App. 216), he would have seen the passing train in ample time to stop and avoid the accident.

We have read the opinion in Missouri, K. & T. R. Co. v. Long (Tex. Civ. App.), 293 S. W. 184, cited by plaintiff, and the only similarity between it and-the case before us is that there an automobile was driven into a passing freight train. There the railroad crossing was in a depression about 10% feet below the level of the highway approaching from, one side and over 23 feet below the level of the highway on the other side. There were confusing turns as one approached the crossing, also various electric lights which directly faced an automobile driver before approaching the crossing, so that one looking ahead would look above and over any freight train that might be passing. There were other circumstances which make this case quite different from the one under consideration.

We have taken into consideration the testimony of plaintiff supported by the physician that his injury was such as to cause him to lose all recollection of what happened from a point about three-quarters of a mile west of the railroad crossing, but we are giving full weight not only to his testimony most favorable to his claim but also to the testimony of Miss Thibeau.

We are of the opinion that the peremptory instruction was proper and the judgment is affirmed.

Affirmed.

Matohett and 0’Connor, JJ., concur.