text:
    Christian Linck v. Mathew C. Whipple et al.
    Nuisances—Instructions—Evidence,
    An instruction stating that the jury may disregard the uncorroborated evidence of a witness, if they believe he has sworn falsely upon a material question, without specifying that, they must be satisfied that the false statement wa» knowingly and wilfully made, is erroneous.
    [Opinion filed February 21, 1889.]
    Appeal from the Circuit Court of Montgomery County; the Hon. J. A. Creighton, Judge, presiding.
    Messrs. A. N. Kingsbury and Lane & Cooper, for appellants.
    Messrs. George L. Zink and James M. Truitt, for appellee.
   Conger, J.

This was an action on the case. The declaration in the first count alleged an injury to the dwelling house of appellant from water flowing against it from appellees’ buildings, caused by defective drain pipes and tiles; and the second alleged that appellees used a certain back yard as a privy, and allowed and suffered filth, foul water, etc., to accumulate therein, causing offensive odors to prevail in the immediate vicinity of appellant’s dwelling- house and kitchen.

The questions were sharply contested, and the evidence conflicting, and the jury found against appellant.

We are not entirely satisfied with the verdict, but should not feel called upon to interfere had the jury been properly instructed.

The ninth instruction for appellees was as follows: “No. 9. The jury are the judges of the value of the testimony of each witness who has testified in this case, and if any one of the witnesses has, in the judgment of the jury, sworn falsely upon a material question involved in the case, they may, if they see proper, disregard the whole of such witness’ testimony, except as to such matters as such witness is corroborated by other creditable witnesses, or facts and circumstances proven on that trial.”

This form of instruction has so frequently been condemned that it is not necessary to refer to authorities. The essential thing necessary to discredit a witness, under the case supposed in the instruction, is, that such false statements must be knowingly made.

Honest witnesses may state things from the witness stand by mistake, or from want of knowledge, that are false, and still the jury would not be warranted in disregarding the whole of tlu testimony of such witnesses for that cause alone, but in addition thereto the jury must be satisfied that such witnesses make them intentionally and wilfully.

The weight to be given to certain witnesses was a vital question in the case, and hence the jury should have been correctly and carefully instructed upon it.

From a careful reading of the testimony we are of opinion injustice may have been done by this instruction, and that justice requires a new trial.

The judgment of the Circuit Court will therefore be reversed, and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Pleasants, J.

license: Public Domain

text:
    Alexander T. Miller v. Thomas W. Dyas, Administrator, etc..

      Partnership—Bill for Accounting—Practice—Reference to ,Master— Stipulation to Ignore Findings.

    This court will not consider a case tried upon the pleadings and evidence, subsequent to a reference to a master and under a stipulation by counsel to ignore his findings.

      [Opinion filed February 21, 1889.]
    Appeal from the Circuit Court of Adams County; the Hon. William Marsh, Judge, presiding.
    Mr. J. F. Carrott and Mr. J. H. Williams, for appellant.
    Mr. J. C. Broady, for appellee.
   Pleasants, J.

This was a bill filed by appellee to setfe the affairs and state the account between appellant and the deceased, who, under written articles, had carried on the ice business in partnership for more than five years and until the death of the latter, without any settlement. Miller alone conducted the business, for which he was to receive a salary in addition to his share of the profits. Each party claimed a balance as due him from the other.

The record contains some three hundred and fifty pages of evidence, embracing numerous accounts from partnership and other boohs, notes, checks and other papers, with explanations requiring much time and close attention to understand in their bearing upon the respective claims of the parties. It presents a case that, according to the practice in chancery as often declared by the Supreme Court, should have been referred to the master to ascertain and state the account, and heard upon specific exceptions to his report.

It was so referred,- and he made report; but it was finally heard upon the pleadings and evidence, upon an agreement between the parties, as recited in the decree, that the cause shall be heard and decided by the court, irrespective and regardless of any findings of the master in chancery in his said report or supplemental report, or any exceptions or objections thereto on file herein.”

The findings and exceptions or objections referred to do not appear in the abstract, and might as well not be, if they are, in the record.

We pan not sanction this practice, nor undertake to go over the whole case in order to determine whether the balance found by the court was or was not correct. In Moss v. McCall, 75 Ill. 190, the Supreme Court say, on page 196: “ Counsel will not be permitted, by stipulation or otherwise, to impose upon an Appellate Court the performance of duties that should be performed by the master in chancery,” and cite the authorities which establish the proper and only proper course of proceeding in such cases. See also Patten v. Patten, Ibid. 446.

Therefore, without considering the points made in argument here, we reverse the decree and remand the cause.

jReversed and remanded.


text:
    Edgar Z. Pells and Charles Bogardus, Administrators, v. Thomas Snell et al.

      Limitations—^Absence from State—Railroads—Construction Contract— Location of Station—Subscription to Influence—Recovery of—Principal and Agent—Contract against Public Policy—Special Interrogatories— Evidence—Instructions.

    1. Agency may be created, in the absence of a previous agreement, by the subsequent adoption or ratification of the party entitled to the benefit of the act involved.
    2. The receipt of money belonging to another renders the person who receives it the trustee of the former, and the bringing of an action by him for its recovery, is an adoption or ratification sufficient to charge the latter as agent.
    3. That clause of the statute of limitations which declares that the time of the absence of a person from, and residence out-of, the Slate after the accruing of a right of action, is no part of the time limited for the commencement of suit, means an abiding, remaining, sojourning or dwelling at a place for so long a time continuously as to indicate that it was not merely temporary, with a view to the business or health of such person.
    4. In an action for money had and received, it being alleged that owners of property adjacent to a railroad line, with a view to influencing the location of a station, gave their promissory note, payable to a third person who collected the same as agent for and in pursuance of an understanding with construction contractors within whose discretion such station was established, this court holds that the evidence sustains the verdict for the plaintiffs.
    [Opinion filed January 21, 1889.]
    Appeal from the Circuit Court of Ford County; the Hon. C. B. Smith, Judge, presiding.
    Messrs. C. H. Wood, A. Sample, E. C. Gray and F. L. Cook, for appellants.
    Messrs. James S. Ewing and T. C. Kerrick, for appellees.
   Pleasants, J.

In the spring of 1871 the board of directors of the L. B. & M. R. R. Co., of which William H. Pells was then a member, let to appellees’ firm the contract for the construction of its road, which was to extend from Bloomington east to the State line, at a specified price per mile. By the terms of the contract, Snell, Taylor & Co. were given the right to locate the stations east of McLean county, with the consent of the chief engineer of the T. W. & W. R. R. Co., which had already leased the contemplated road and guaranteed the construction bonds of the company, the other directors having reserved the right to locate stations in McLean county. Mr. Pells, who owned a quarter section of land on the line of the road near Sugar Creek, in Vermillion county, desired to have the privilege or right of locating one cast of McLean, and, as he claims, Mr. Taylor, of the contracting firm, agreed that he might have it. About the first of October, 1871, the grading of the road having been finished to a point near to it, the land owners and residents about Sugar Creek were desirous of securing a station there, and to that end to secure the influence and aid of Mr. Pells. They conferred with him in relation to it, and on the 18th of that month got up or started a subscription paper in the words following: “Know all men by these presents, that whereas we, the undersigned, are desirous of securing the location of a station and the erection of a depot building on the E. 1/2, Sec. 10, T. 23, B. 14, W. of 2d P. M., in the county of Vermillion, State of Illinois, and on the line of the L. B. & M. railway; and whereas we are desirous of obtaining the aid and services of Wm. H. Pells for the procuring this said location and the erection of a depot building as aforesaid; now, therefore, each of the undersigned and every one of them does hereby agree and bind himself, his heirs and assigns, that if a station shall be located on said railway, on the tract of land above described, and a depot building erected at such station, to pay to said Wm. H. Pells, his heirs or assigns, the sum of money by him hereinafter subscribed and set down opposite his signature in said list, within six months from the completion of side track and buildings aforesaid. Sugar Creek, Vermillion County, State of Illinois, Oct. 18, 1871;” which paper was afterward subscribed by divers persons so interested, with different sums, amounting in all to $3,400, and delivered to Pells. Of this proceeding Snell, Taylor & Co. had no knowledge or information until the following spring.or early summer. So far there is no controversy, but it is claimed by appellees that in that winter or early in the spring of 1872, when the iron had been laid to Paxton, the grading extended east, and all the stations required for the interest or convenience of the railroad company or of the public had been established up to and including one at ¡Rankin, only one mile west of the land above described, no point had been designated by Pells for a station under the alleged agreement of Taylor, Pells first expressed liis desire to Snell to have one located on that land; Snell then told him that in view of the one at Rankin, it was unnecessary and would not be done unless they were to be paid for it, stating the amount required at three or four thousand dollars; and that Pells replied, in substance, that the money for that purpose would be raised. Pells flatly denies that he ever had such a conversation.

It appears that about the 17th of June, and before anything was done toward the establishment of the station, Snell, having heard of the subscription mentioned, sent Mr. Cook, now of counsel for appellants, to see the subscribers and obtain a promissory note to Snell, Taylor & Co. in lieu of it. They declined to give such a note, but agreed to make one to Pells. Cook accordingly drew up a note to him for $3,400, payable nine months after date; left it, undated, with one of the subscribers to procure signatures, and the same night or following diy reported to Snell, who claims that he thereupon immediately took some steps toward the establishment of the station; just what, or whether anything was so done by appellees or their sub-contractors, is by no means clear from the evidence. It appears that they then, or previously, laid a plug or spur track, about four hundred feet in length, which was afterward used in making the permanent side track of twelve or thirteen hundred feet; and it is claimed that they also began the erection of the station house, or provided the material for it. But certainly before the completion of either, on the 26th of June, on a controversy which had arisen with the Wabash company as to how nearly they had completed their work under their construction contract, they turned the road over to that company to finish, allowing it therefor the sum of $10,000, to be deducted from what would be due upon its completion. The switch and side track were completed in July, and the station house in September. Appellees claim that whatever was done by the Wabash company was done for them, under the arrangement referred to, and is to be regarded as if done by them, which appellants deny.

The note above mentioned, having been signed bv several of those who had signed the subscription paper, was delivered to Pells on the 27th of November, but dated back to the first of October; and at the same time, though under date of July 23d, he indorsed on said paper an assignment of said subscriptions to the makers. Mr. Cook, as agent of Shell, Taylor & Co., either in that month or later, demanded the note of him for them, to which he replied that he had no note in which they had any interest. In May, 1873, he sold and assigned it to O. B. Taft, of Chicago, and received the money thereon, which he appropriated to his own use.

Thereupon, on the 26th of August, 1880, appellees brought this suit against him, in assumpsit, on the common counts. The pleas filed were the general issue and the statute of imitations. To the latter they replied, among other things, that after the cause of action accrued, the defendant departed from and resided out of the State for different periods, which left for the time of his being within it, after the cause of action accrued and before the commencement of the suit, less than five years; on the traverse of which issue was joined.

In the first trial, the court instructed the jury, in substance, that if plaintiffs relied on a contract with the makers of the note, or the defendant, to locate a switch and station at Pellsville, when neither the public convenience nor the interests of the stockholders of the railroad company required it, hut solely to get money for the job, then such contract was void and they could not recover upon it, if Pells was a director of said company and was employed by plaintiffs as their agent to raise the money upon such contract and by subscription; and refused to instruct, as asked on behalf of plaintiffs, to the effect that if Pells received the money, as their agent, he was estopped to deny their right to it.

Without argument upon the facts a verdict was returned for the defendant, and judgment thereon entered. From this judgment plaintiffs took an appeal, on which, by agreement of the parties, approved by the Circuit Court, the only question submitted was upon the rulings in reference to the instructions, and therefore the record did not contain all the evidence introduced on the trial.

The judgment was here affirmed, but on further appeal was reversed by the Supreme Court—holding that if the contract referred to was illegal, it was so only because against public policy; “ and in such case an agent who has received money for his principal can not, by law, set up such supposed illegality as a reason why he should not pay over the same to his principal. * * * He is estopped by the relation of agency and the receipt of the money.” Snell, Taylor & Co. v. Pells, 113 Ill. 145-50.

On remandment, the death of the defendant being first suggested and appellants substituted, the cause was, by agreement, submitted upon the reported evidence produced on the former trial, subject to objection for incompetency or immateriality, and under instructions which, upon the point involved in the former appeal, conformed to the opinion of the Supreme Court. The jury found, specially, that Pells was not the agent of Snell, Taylor & Co. in obtaining the subscription paper in evidence, nor in procuring the 83,400 note, but that he was such agent in obtaining the money on said note, and that his residence, from May, 1873, to August, 1880, was Ridgway, Orleans county, New York, and a general verdict for plaintiffs for 85,032. Motions for a new trial and in arrest were overruled, and judgment entered for plaintiffs on the general verdict. Defendants now appeal and assign numerous errors.

The evidence preserved in the record is quite voluminous, and the arguments here, both printed and oral, were very elaborate. As affecting the merits, however, only two principal questions of fact are presented, viz.: first, whether there was an understanding between Snell and Pells, that Snell, Taylor & Co. were to be paid for the station if they should locate and build it at Pel Is vil le, out of the money to be raised on the subscription or note mentioned, and second, whether they performed the condition. Appellants’ counsel, insisting that if there was such an understanding it was against public policy, so that Pells could be held liable for money received by him in pursuance of it only in case he received it as agent of appellees, now urge that the instructions given upon the hypothesis of such agency and the finding of it as a fact by the jury, were wholly without warrant or basis in the evidence. The argument is, that the only proof relied on to establish agency, is the alleged conversation between him and Snell; that according to the testimony of Snell himself, this alleged conversation did not occur until months after the subscription was obtained; that the note was but a substitute for the subscription and like it made payable to Pells, the makers expressly refusing to make it payable to Snell, Taylor & Co.; that the jury specially found there was no such agency in obtaining either, and, as matter of law, that Snell, Taylor & Co. could have no more right to the proceeds than to the subscription and note.

' Throughout this argument the term “agency” seems to he used to signify a relation created by an agreement, express or implied, made between the parties before the performance of the act in question and with reference to it; and probably to a jury that idea would be imported by the language of the instructions. It is the popular idea. In that view they might well find there was no agency in procuring the subscription or note; and yet, if they believed from the evidence that before the money was received by him Pells gave Snell to understand that his firm would be paid out of that money when received, if they should have then put in the station upon that understanding, and also find that he received the money for them in pursuance of an antecedent agreement, they could properly infer that he acted therein as their agent. We perceive nothing absurd or unreasonable in the position that Snell, Taylor & Co. might have no right to the subscription or note, and yet have a very clear right to the money proceeds in the hands of Pells. If he made no promise to assign it, nor incurred any personal liability to pay except on receipt by himself of the money, then so long as he continued to be solvent, and to use good faith and due diligence to collect it, he would have the right, even as against them, to retain it; and yet when he received the money on it he would receive it for them, and be liable for it to them in this action. Whatever may have been the purpose with which he received these papers, or the intentions of the subscribers or makers in respect to them, they would be immaterial upon the question of his relation and liability to the plaintiffs, with reference to the proceeds. These would depend wholly and solely on the understanding between him and them as to these proceeds, and their action upon the faith of it.

But agency in respect to any given act, may also be . created or established without a previous agreement—as by subsequent adoption or ratification by the party entitled to the benefit of it. This is an action for money had and received, which is an equitable action, that lies wherever one has received money which ex equo et bono belongs to another and failed to pay it over. In such case the law implies an agreement to pay it. By the receipt of the money he m ikes himself a trustee, and the bringing of the action is an adoption or ratification sufficient to charge him as agent in receiving it. We perceive no reason why this is not all the agency required to be shown in this case, even if the arrangement for securing this station was illegal as being against public policy; but we are not to be understood as holding or conceding that under the circumstances of this case it was illegal.

Upon the question of fact as to the existence of the understanding, there was before the jury the positive testimony of Mr. Snell. He does not pretend to remember the precise language used by Pells, when informed that they would not put in the station without pay, and that it would require three or four thousand dollars to pay them for it. He gives different forms of expression—chat “ he ” or “ we ” “ would ” or “could” “raise” or “get up” the money; and counsel argue from the mood and tense stated that he could not have referred to the money already subscribed. But the witness also said he didn’t know but it was that “the money had been raised.” In one sense it had been, and in another it had not, but only promised. We think there is no force in this suggestion. By either form of expression, in view of the facts, the jury would understand that he referred to the subscription, whether it had then been completed or not—which does not appear, though it had been started some months before. It is evident that when Snell afterward heard of the subscription he supposed it was what Pells had reference to as having been done, or as to be done, and that it was for money to pay them for the station; for he immediately sent Mr. Cook to “see that the papers were made straight,” and to get a note in place of the subscription. In so doing he entirely ignored Pells; which would have been a rare exhibition of impertinence, except for that understanding, but with it, was quite natural and reasonable.

It is also suggested that Snell admitted he looked to the road for their pay. The record in one place does make him say in answer to the question, on cross-examination, whether he looked to Mr. Pells for it, “No, I looked to the road.” We think it clear from the context, however, that the word he used was not “road,” but “ note,” and the reporter must have mistaken it, as he did in the cases of other witnesses in several instances. The same question, in almost the same words,had just before been put to him, and his answer was, “I was looking to the subscription, or whatever else was going to make a good note.” On re examination he said, “ I supposed I was to get that note or the proceeds of the note.” He had also testified that the stations from Bloomington to the State line which were to be fixed for the company, had all been fixed; and his statement of his refusal to put in the station at Pellsville unless he was paid for it, shows it was put upon the ground that they could have no claim for it against the company, that is, the “road.” There is no way of evading the fact, or the legal force of the fact, that Snell testified distinctly, in substance, that Pells told him the money required to pay his firm for the station house and necessary switches and side track, would be provided for by the property owners and residents of the neighborhood, nor of the inference from his testimony, that Pells had reference to the money then contemplated by the subscription paper in evidence.

Snell alone testified to this conversation. He was not certain when or where it took place, or who if any others were present. He thinks he may have had several talks with Pells about it. He met him at different times and places while the work was going on: It was in the winter or spring of 1872, probably in the spring, and at the Bennett House in Paxton. A long time had elapsed and liis memory on these points was not clear. But he was very positive as to the substance of what Pells said and the connection in which he said it.

The only other direct testimony in relation to it was that of Mr. Pells, who, as already stated, flatly denied that any such talk ever occurred. He says he expected the station would be put in, under the agreement of Taylor, without extra compensation to the contractors. The fact of the agreement by Taylor is not contradicted, but no particulars of it are given. It is not to be presumed that he agreed to put it in without any compensation. If it was to be paid for under the construetion contract, then it should have been located under the right therein given to them, and in that case the place should have been designated by Pells in apt time—before all the contract stations had been located. Pells does not say he did so designate it. Besides, with his alleged expectation there would be no services to be rendered by him to procure it, except to designate the place; how could he accept, as for services, from people who would derive less advantage than he from its location, the sum of $3,400, or any other sum? He owned eighty acres on which the town of Pellsville was located, to grow up with the station, and eighty more immediately adjoining. If anybody else had as large an interest it does not, appear. In view of his claim to this money, might not the jury have regarded the idea of a free depot, secured by the agreement before the subscription for his services was taken, as a weak attempt to defend his estate at the expense of his character? He says he didn’t know but that “he would have to buy up somebody with” this money, but doesn’t claim that he did buy anybody. He says he had expenses but specifies nothing of the kind. He labors to account for the fact of his claiming and appropriating this fund as properly his own.

Influence and services were not required to get this extra station ; money alone, and nothing but money, would accomplish it; and why he should get the money and other advantages, without influence or service, and Snell, Taylor & Co. should put in the extra station, was not very satisfactorily shown.

We hold, then, that upon the question of the existence of the alleged understanding between Pells and Snell, and of its effect to create an agency on the part of Pells in the receipt of the money, there was evidence to warrant the instruction and finding.

Upon the other question, whether appellees’ firm did locate the station and erect the station house, and put in the switches and side track, either directly or through the Wabash company, there is no controversy as to the fact that Snell, Taylor & Co. arranged with said company to finish the road as required by the contract between appellees’ firm and the L. B. & M. E. E. Co., according to the understanding of that contract by the Wabash company. The only doubt is -whether that arrangement included the Pellsville station. The evidence does not show the terms of that arrangement. It is therefore not a question of construction of its terms, but simply of fact, whether this station was included. Snell swears that he supposed, that is, that according to his understanding, it was. There is no positive evidence that it was not. Since no written evidence of the contract or arrangement was offered and no objection was made to this testimony of Snell in relation to it, we must infer that it was verbal only. Present purposes do not require us to consider and determine whether or not the circumstances proved tend to overcome or rebut his testimony, but we think there was so much of circumstantial evidence to corroborate it as to make, upon this point, a fair question for the jury; as, for example, that the station was put in and that unless the Wabash company was paid for it out of the $10,000, it does not appear that it was paid at all. And if there was evidence, positive or circumstantial, sufficient to account for their finding, reasonably and without imputing to them the indulgence of passion or prejudice or any material misunderstanding of the law or the testimony, it should not be disturbed. There has been no attempt to refer herein to all the evidence tending to maintain the issues on the part of the plaintiffs, but only to show that there was enough to require the submission of these issues to the jury.

It appears that the court prepared the instructions given— refusing all of those asked, on both sides. We think they fairly state the law applicable to the evidence. The reasons . which, in our opinion, justify the refusal of those asked on the part of the' defendant and not substantially included in what was gi%ren, may be inferred from our view of the law as herein above stated.

As to the issue made on the replication to the plea of the statute of limitations, the question was also mainly one of ■fact. The statute provides that if, after the cause of action accrues, the defendant departs from and “ resides out of the State,” the time of his absence is no part of the time limited for the commencement of the action. Under the former act, which did not contain the phrase above quoted, the times of absence, however brief and clearly temporary, and even though occupied in mere journeying, might be deducted. We are inclined to the opinion that this phrase in the statute now in force means no more than a remaining, abiding, sojourning or dwelling at a place for so long a time, continuously, as to indicate that it was not merely temporary, with a view to the business or health of the party and animo revertendi/ for the provision clearly contemplates deductions for different periods within a single year, which could hardly be if residence, in the full legal'sense, was intended. Such abiding, remaining, sojourning or dwelling, without acquiring a legal residence, seems to be indicated by the definition and synonyms of the verb as given by Webster; and this construction would seem necessary in order to give reasonable effect to the section of the statute in question. This was the construction given to it by the court below.

That Pells, after the cause of action, if any there was, accrued, did depart from and “ reside” out of the State in that sense, there was much evidence to prove, although it is probably true that he made provision and expected to be, much of liis time, at his daughter’s home, in Paxton, Ill. The special interrogatory submitted to and answered by the jury was broader than it needed to be; and yet that finding was not without support in the evidence. His residence, for many years prior and up to the spring of 1872, is conceded to have been at Ridgely, Orleans county, N. Y., and, after all, the -truth seems to be about what he stated to Mr. Dennis, the clergyman of Medina, only six weeks before the trial at Dan-ville—that he spent part of his time at Paxton, part at Petrowsky, Mich.; part at Bochester, N. Y., and had no home anywhere. That condition appears to have continued to the time of his death. On this issue, then, the verdict is fairly supported by evidence—not conclusive, indeed, but clearly tending to that conclusion.

Perceiving no material error in the record, the judgment will be affirmed.

Judgment affirmed.


text:
    The Illinois Central Railroad Company v. Charles Ross, by next Friend.

      Railroads—Trespass—Master and Servant—Malicious Assault by Servant—Flagman—-Sec. 99, Chap. 114, R. S.—Scope of Employment—Use by Public of Railroad Right of Way—Personal Difficulty—Damages, Vindictive and Actual.

    1. A master is liable in damages, vindictive as well as actual, for a tortious act done by his servant, within the scope of his employment and in good faith with a view to the furtherance of his master’s business.
    2. By Sec. 99, Chap. 114, R. S., a flagman’s duties are limited to his crossing, and do not extend to the right of way beyond, unless the same is actually in use as and for a crossing.
    8. A flagman should take the necessary steps to prevent an injury to another from trains and the like, although it requires him to leave his post of duty, unless by so doing more serious consequences would be apt to arise.
    4. Flagmen can not, by any action of their own, extend the scope of their duties.
    5. Am ister is not liable for his servant’s tort growing out of acts within the scope'of the employment, when such tort is separated from all that preceded it, and is clearly distinguishable as to time, motive and object, and is on purely personal account.
    6. In an action of trespass brought to recover damages from a railroad company for an alleged malicious assault by one of its employes, this court holds that the altercation leading up to the same was of a personal character, and that it was entirely inconsistent with, and outside the scope of, the employment.
    [Opinion filed June 27, 1889.]
    Appeal from the Circuit Court of McLean County; the Hon. Owen T. Reeves, Judge, presiding.
    Messrs. Williams & Capen, for appellant.
    Where the master owes no duty to the injured party, and his liability only arises as a legal conclusion from the relation of master and servant, he is not liable for his servant’s malicious trespass or criminal act, where such servant in performing such act has not as his motive the furtherance of the master’s business. Wright v. Wilcox, 19 Wend. 343; Mali v. Lord, 39 N. Y. 381; Vanderbilt v. R. T. Co., 2 Id. 479; Sanford v. Eighth Ave. R. R. Co., 7 Bos. 122; Croft v. Alison, 6 E. C. L. 614; N. & C. Ry.. Co. v. Starnes, 9 Heisk. 52; McKeon v. Citizens’ Ry. Co., 42 Mo. 79; Isaacs v. Third Ave. Ry. Co., 47 N. Y. 122; Douglass v. Stephens, 18 Mo. 362; Moore v. Sanborne, 2 Mich. 519; Dane’s Abr., Chap. 59; Bacon’s 7 b., “Master and Servant;” Story on Agency, Sec. 456; Snedgrass v. Bradley, 2 Grant’s Cas. 43; Cox v. Keahey, 36 Ala. 340; DeKamp v. M. & M. Ry. Co., 12 la. 348; Cleveland v. Newsom, 45 Mich. 62; Wood v. Detroit C. S. Ry. Co., 52 Id. 402; Angell on Carriers, Sec. 604; Angell & Arnes on Corp., Sec. 388; Story on Bailments, p. 266; 2 Hill, on Torts, 524; Ewell’s Evans on.Agency, *489.
    The leading Illinois cases, treating of the general doctrine of liability of master for torts of servants to third persons, are Johnson v. Barber, 5 Gilm. 425; Fuller v. Voght, 13 Ill. 277; Moir v. Hopkins, 16 Id. 313; Oxford v. Peters, 28 Id. 434; C. & E. I. Ry. Co. v. Flexman, 103 Id. 546; Arasmith v. Temple, 11 Ill. App. 39; Keith v. Lynch, 19 Id. 574.
    Where the authority given to the servant only authorizes the employment of usual and lawful means, the master is not liable for illegal and criminal acts on the part of the servant. Crocker v. N. L. & C. Ry. Co., 24 Conn. 249; Noyes’ Maxims, Chap. 44; Lyon v. Martin. 8 A. & E. 512; Poulton v. L. S. & W. Ry. Co., L. R., 2 Q. B. 534; Fraser v. Freeman, 43 N. Y. 566; Moore v. Sanborn, 2 Mich. 519; Foster v. Essex Bank, 17 Mass. 479; Thames S. S. Co. v. H. R. Ry. Co., 24 Conn. 40; Cooley on Torts, 535, 536.
    To render a master liable for an act done by the servant, that act must pertain to the particular duties of the employment, within the scope of that employment, and while the servant is bona fide trying to execute one of the duties for which he is employed. Towanda C. Co. v. Herman, 86 Pa. St. 418; Stevens v. Woodward, L. R., 6 Q. B. Div. 318; Keith v. Lynch, 19 Ill. App. 574; C., B. & Q. Ry. Co. v. Casey, 9 Ill. App. 632; and cases supra.

      A servant having authority over a particular piece of land, has no authority to commit a trespass upon other land, and the master is not liable if he does. Oxford v. Peter, 28 Ill. 434; Ewell’s Evans on Agency, 490; Bolingbroke v. Swindon, L. R. , 9 C. P. 575; Barwick v. Eng. J. S. Bank, L. R., 2 Ex. 259; Lyon v. Martin, 8 A. & E. 512.
    Whether or not Tucker was acting within the scope of his employment in committing the assault complained of, was a question of fact for the jury, and it was error for the,court to assume that fact proven in its instructions. I. C. Ry. Co. v. Zang, 10 Ill. App. 594; Chicago v. Bixby, 84 Ill. 82; Adams v. Smith, 58 Id. 417; Small v. Brainard, 44 Id. 355; M. S. & N. I. Ry. Co. v. Shelton, 66 Id. 424; Amor. Ins. Co. v. Crawford, 89 Id. 62.
    Where the duties of the servant are prescribed by law, his employment simply contemplates the exercise of such powers as the law confers upon him, and the master is not liable for an illegal and unwarranted act. Wood on Master and Servant, p. 547; Allen v. London Ry. Co., L. R., 6 Q. B. 65.
    Messrs. John T. Lillard and James S. Ewing, for appellee.
    An instruction which charges the jury that if plaintiff has proven his case as charged in his declaration he is entitled to recover, where there is no plea of special affirmative defense, is a form of instruction approved by our Supreme and Appellate Courts. City of Bloomington v. Tebbals, 17 Ill. App. 455; Miller v. Baltlhasser, 78 Ill. 302; O. & M. Ry. Co. v. Porter, 92 Ill. 437.
    Even if an instruction of a series is faulty, yet if its defect is fully explained by others of the series, on the same side, or on the opposite side, the error or fault will be cured and will not reverse. C., B. & Q. R. R. Co. v. Warner, 123 Ill. 42; Spies v. People, 122 Ill. 1; Syllabus, 44, 45; N. L. Packet Co. v. Binninger, 70 Ill. 571; St. L., V. & T. H. Ry. Co. v. Funk, 85 Ill. 460; Belt v. People, 97 Ill. 461; Lawrence v. Hagerman, 56 Ill. 70; T. W. & W. Ry. Co. v. Ingraham, 77 Ill. 309; I. C. R. R. Co. v. Swearingen, 47 Ill. 206.

      A master is liable for the torts of his servant, committed by his authority, express or implied; and in most litigated cases such authority is not express, but is implied from the nature of the employment and the duties incident to it. “It is not necessary that the servant was acting under the master’s orders or directions) or that the master knew the servant was to do the particular act that produced the injury in question. It is enough if the act was within the scope of his employment, and if so, the master is liable, even though the servant acted wilfully, maliciously, and in direct violation of his orders.” Wood’s Master and Servant, Secs. 307 and note; 282 and note; 283, 285, 286, 287, 288, 295, 298; N W. R. R. Co. v. Hack, 66 Ill. 238; T. W. & W. R. R. Co. v. Harmon, 47 Ill. 298; C., B. & Q. R. R. Co. v. Dickson, 63 Ill. 151; L. S. & M. S. R. R. Co., v. Brown, 123 Ill. 162; C. C. Ry. Co. v. McMahon, 103 Ill. 485; Keedy v. Howe, 72 Ill. 136; C., B. & Q. R. R. Co. v. Sykes, 96 Ill.175; C., M. & St. P. Ry. Co. v. West (Ill.), 17 N. E. Rep. 788; Hewitt v. Swift, 3 Allen, 420; Hawes v. Knowles, 114 Mass. 518; Jackson v. S. A. R. R. Co., 47 N. Y. 274; Quinn v. Power, 87 N. Y. 535; Bounds v. D., L. & W. R. R. Co., 64 N. Y. 129; Cosgrove v. Ogden, 49 N. Y. 255; Henrich v. Pullman Pal. Car Co., 20 Fed. Rep. 100; P. C. & St. L. Ry. Co. v. Kirk, 1 N. E. Rep. 849; Howe v. Newmarch, 12 Allen, 49; Mott v. Consumers’ Ice Co., 73 N. Y. 543; E. & T. H. R. R. Co. v. McKee, 99 Indiana, 519, and other cases there cited.
    When the servant of a railroad corporation, or company, acting within the scope of his employment, injures the person or property of another, and in so doing acts wilfully,maliciously and in an aggravated manner, the corporation, or master, is liab’e, both for compensatory and for exemplary damages; not only when some contractual obligation or public duty was • owing to the injured party, but as well when the injured party was a trespasser, and an excess of malicious force or violence was used against him. T., W. & W. R. R. Co. v. Harmon, 47 Ill. 298;” I & St. L. R. R. Co. v. Cobb, 68 Ill. 53; C., B. & Q. R. R. Co. v. Bryan, 90 Ill. 126; Donnelly v. Harris, 41 Ill. 126; Singer Mfg. Co. v. Holdfodt, 86 Ill. 455; I. C. B.R. Co. v. Sutton, 53 Ill. 397; I. & St. L. R. R. Co. v. Ogle, 92 Ill. 353; Jones v. Jones, 71 Ill. 562; McNay v. Stratton, 9 Ill. App. 215; Denver & R. G. Ry. Co. v. Harris, 122 U. S. 597; Barry v. Edmunds, 116 U. S. 550, and cases cited; Hawes v. Knowles, 114 Mass. 518; Kibb v. Youmans, 20 Hun (N. Y.), 123; Atlantic & G. W. Ry. Co. v. Dunn, 19 O. St. 162; Goddard v. G. T. Ry. Co., 57 Me. 202; Hopkins v. A. & St. L. R. R., 36 N. H. 9; Wood’s Master and Servant, Sec. 323; Hansen v. E. & N. A. Ry. Co., 62 Me. 84; Phila. & C. R. R. Co. v. Larkin, 47 Md. 155; Perkins v. Mo. & C. Ry. Co., 55 Mo. 201; Vicksburg & C. Ry. Co. v. Patton, 31 Miss. 156; N. O. & C. Ry. Co. v. Burke, 53 Miss. 200; N. O. & C. Ry.Co. v. Hurst, 36 Miss. 660; Boetcher v. Staples, 27 Minn. 308; Barnes v. Martin et al., 15 Wis. 240; K. P. Ry. Co. v. Kessler, 18 Kans. 523.
   Pleasants, J.

This was an action of trespass, brought by appellee against appellant and John Tucker. The declaration as originally filed contained three counts, charging that said Tucker, and the company by him as its flagman, at the crossing of its road and Jefferson street in Bloomington, in -removing the plaintiff from its tracks and right of way at or near said crossing, maliciously assaulted and beat him. It alleged, in general terms, that plaintiff was “ trespassing ” on the company’s grounds, and that Tucker, in removing him, was acting in the line of his employment, but neither of the counts averred any express authority from the company to remove him, or set up any particular fact from which the law would imply it. Yet the court overru'ed a demurrer to them, and gave the plaintiff leave to file additional counts, which differed from the others only in stating the wrong as consisting in the use of unnecessary force.

The plea of not guilty was filed, and thereupon the declaration was so amended, by leave of court, as to dismiss the suit as against the defendant Tucker. On the trial plaintiff obtained a verdict for $2,500 damages, which the- court refused to set aside, and from the judgment thereon this appeal was taken.

The statute provides that “ in all cases where the public authorities, having charge of any street over which there shall be a railroad crossing, shall notify any agent of * * * the corporation * * * that a flagman is necessary at such crossing * * * it shall be the duty of such railroad company to place and retain a flagman at such crossing, who shall perform the duties usually required of flagmen; and such flagman is hereby empowered to stop any and all persons from crossing a railroad track, when, in his opinion, there is danger from approaching trains or locomotive engines; ” and further, that in such case the railroad company “ shall have the right to erect and maintain, in the highway or street crossed, a suitable house for the shelter of such flagman.” Starr & C. Ill. Stats., Chap. 114, Sec. 99.

An ordinance of the city of Bloomington had provided that it should be the duty of all railroad companies, within sixty days after notice by resolution of the city council so to do, to place and maintain a flagman at any of their street crossings, whose duty was thereby defined to be “to signal persons traveling in the direction of any or either of said crossings, and warn them upon the approach of any locomotive engine or car, of impending danger.”

Before the occurrence of the injury here complained of, the city council, by resolution duly passed, required the I. C. R. R. Co. to place and maintain a flagman at the crossing of Jefferson street with the line of its road; and the company had therefore stationed said Tucker as flagman- at said crossing, without any express direction as to the scope of his duties, and erected in the street there, a suitable house for his shelter.

Jefferson street runs east and west. The next parallel street south is Washington, and the next to that is Grove. The tracks of the company crossed these streets at nearly a right angle. Its right of way through the blocks between them extended a considerable distance on each side beyond the tracks, and was uninclosed. At each of these crossings a flagman was stationed. On Jefferson street, at the crossing, there were laid two tiers of heavy plank for the passage of vehicles across the rails, the outer ends of which were within eight or ten feet of the lines of the street, which, however were not there defined by buildings or other structures.

It appeared from the evidence that the plaintiff, then a lad of the age of thirteen years, lived with his parents, two blocks north of Jefferson street, near the railroad tracks, and was strong, active and intelligent for his age. He had been in the habit of playing with his companions upon the company’s right of way in the neighborhood. Hear the Jefferson street crossing they had frequently indulged in the game of il duck on the rock,” so-called, in which a smaller rock is set upon a larger one and others are thrown or pitched at it from a base line. At times the duck had been so placed that the rocks thrown at it would go upon the street, whence the players would take them to throw again. On several occasions the flagman had removed these rocks and remonstrated with the boys. Some ten days before the injury here complained of, his watollhouse had been bedaubed in the night-time, probably by some of these boys, and as an expression of their view of the manner of these remonstrances.

On the occasion in question—in the afternoon of October 12, 1887—upon returning to his crossing after a brief necessary absence he found a number of them on the right of way south of Jefferson street. Whether they had ceased to play and had themselves removed the rocks from the street, or were then engaged in it and he removed them,'is not entirely clear from the évidence. But it appears that before saying anything to them he went up to plaintiff, took him by the collar, and charged him with daubing the watclihouse, which plaintiff denied. Tucker replied that a boy named had told him so, and thereupon shook him and pushed or kicked him down. The boy, rising, with a stone in his hand which he had been using in the play, or then first picked up, cursed and threatened him. Tucker again approached him in an angry manner, and the boy, backing off, motioned as if intending to throw in defense. Tucker then turned away and the boy followed him, still threatening. These demonstrations— alternate advances and retreats by each—were repeated several times. A brief parley ensued, and when Tucker turned to go back to his station on the crossing, the plaintiff gave him a parting curse, said he would get even with him yet and called him a son of a bitch. On the instant Tucker turned again and chased him in a southeasterly direction, and finding the distance between them widening, picked up a lump of slaty coal twice as large as a man’s fist, and hurled it with great force, striking plaintiff between the shoulder blades and knocking him down senseless. After a few minutes the boy recovered consciousness, arose and went to his home.' He was confined to bed and house for several weeks under treatment by a physician, and the evidence tends to prove a permanent injury to his spine.

For a trespass committed by its servant a corporation may be liable for vindictive as well as actual damages, upon its authority to commit it implied from its relation as master; and it may be so liable, even to one who is himself a trespasser. But to make it so, the tortious act must be actually within the ■scope of the servant’s employment, and done in good faith in the interest of the master. This liability rests upon the reason that in contemplation of law the master is present and does the act voluntarily, though by the hand of the servant. Being so present, with the right to control the servant in respect to it—that is, to forbid it, or to require it, and to direct and control as to ■ the manner of doing it—the master should be responsible for it as done. If it be an act in respect to which he has no such right, as between him and the servant, and by ■virtue of their contract and relation, there would be no reason or justice in holding him responsiVe for it. Our views upon this subject were stated in the recent case of The Springfield Engine & Threshing Co. v. Greene, 25 Ill. App. 116,117, to which and the cases there cited, we here refer without further repetition.

The supposed cause of action here relied on was the striking of plaintiff with the . missile mentioned; and the right to recover depends upon the question whether that act was impliedly authorized by the railroad company; in other words, whether it was within the scope of Tucker’s employment, and done by him in good faitli for the benefit of the company. That is the decisive question in the case.

It appears that the whole transaction—the altercation and assaults-—-occurred on the company’s right of way between Jefferson and Washington streets, but none of it on any street nor on any railroad track. Appellant insists that this was beyond the territorial range of his duties, and therefore not within the scope of his employment.

Appellee claims that flagmen at street crossings usually give attention to the tracks and right of way half way to the next crossings on each side—for that purpose dividing the intervening territory between themselves; and some proof was introduced to show that such was the fact at the crossings mentioned in Bloomington, and also in some other cities, but none that such attention was “ required” of them anywhere. Ho authority directly in point has been cited, nor is there any within our knowledge; but the language and the reason of the statute would seem to limit his duties to the crossing, and there, as a rule, he should remain. Where the street is so bounded by structures up to the right of way that the crossing can be made only within its lines, we think his duty is limited territorially by those lines; but- where it is not so bounded, and adjoining land is actually used by the public and crossing made thereon, his duty and authority are also extended to cover the ground so used. And if he should see beyond those limits a dangerous obstruction upon the track, or animals or persons about to go upon it who were apparently unaware or insensible of the danger or incapable of taking due care for their safety, and his action were necessary in order to avert such danger, and no more important and urgent occasion required him at the time to remain at his place on the crossing, undoubtedly he ought to remove that obstruction, or to do whatever would be necessary, with respect to such animals or persons, to prevent the threatened injury; but this would be a moral obligation only, growing wholly out of his relations as a man, and so important and urgent as to override or suspend for the time that of his contract, to be at his place on the crossing. While this would be the duty of any other person having like knowledge, ability and opportunity, it would perhaps be more especially that of an employe of the railroad company, by reason of his special relation to it, though not more so of a flagman than of any other employe. We are further of opinion that flagmen stationed at different street crossings can not, by any agreement or other voluntary action of their own alone, extend the area or scope of their duties. The statute imposes only such “ as are usually required of flagmen,” and confers no greater or other right or power than is usually required for their performance, together with the special authority to stop persons in the cases therein prescribed. And if the mere fact that-a flagman has actually performed, with more or less frequency, and in view from a station-house, other acts than those mentioned in the statute, would charge the railroad company as requiring or authorizing his performance of them, there is no evidence that any flagman of this or any other company ever assumed, for any reason, to exclude or remove anybody from such grounds as these.

This suggests another question of law fairly arising upon this record, though not distinctly raised by counsel. As already observed, this was uninclosed ground in a block between streets of a city. It has been repeatedly held that a stranger to the railroad company has no right to be upon its track or even its inclosed right of way, except at a crossing: I. C. R. R. Co. v. Godfrey, 71 Ill. 500; Same v. Hetherington, 83 Ill. 510; Blanchard v. L. S. & M. S. Ry. Co., 126 Ill. 416. But in I. C. R. R. Co. v. Hamer, 72 Ill. 347, the court seems to make a wide distinction between such grounds, and the uninclosed right of way in cities, towns and villages. As to the latter, it is there said, “ they are places where persons may resort without permission,” for purposes in which the company may have no interest; that they “must be kept open to public use to a limited extent;” that as to them the right of the railroad company is “ subject to that of the public to use the same in a reasonable and proper manner;” and that by the general use to which they are appropriated they are made quasi public;” by which we understand, grounds open to the use of the public in any natural or proper way, not interfering with the-special rights of the company therein. Whether this public right is independent of the company or derived from its implied license, might be material in some cases—as where the company had expressly forbidden its exercise or attempted to revoke such license—but not here; for we apprehend that in neither case would it be contended that the flagman was authorized by his employment as such, to represent the company in that behalf, and upon his own judgment and of his own will to revoke such license, or to forbid or forfeit such use, either as to the public generally or any individual. At the time here in question the public were in the actual enjoyment and exercise of such right in these grounds. There had been no prohibition or attempted revocation by the company, or by its authority. And yet the theory of appellees’ case, as clearly appears from the additional counts and from the argument here, is that Tucker was endeavoring in good faith, on behalf of the company, to remove the boy beyond the entire right of way, and that the wrong consisted solely "and "wholly in the excessiveness of the force he used for that purpose; and the question here suggested is upon his authority, in view of the character of these grounds, so to remove him, even in good faith and on behalf of the company, by any force whatever, against his will.

It can not well- be urged, upon any evidence in this record, that such removal' was necessary or appropriate to the performance of any other duty of the flagman arising upon anything the appellee was then doing or threatening, or in danger of doing. He was not on any of the tracks, nor going nor "threatening'to go on any, nor otherwise interfering with any legitimate use by the company of its right of way there. If ■ he had previously so interfered, it was not with any such ' intention, and he had entirely ceased and desisted, blor was he in such danger to himself and so ignorant of it and unable to take care of himself, as to justify his removal on that ' ground. He knew all the dangers of the place as well, and was as able to avoid them as a full grown man; and if he had " been as able to defend his person and rights., it is morally certain that for anything he had previously done, Tucker would not have presumed to tell him to leave, much less have ventured to compel him by force.

For the reasons above indicated we are inclined to the opinion that as to the tortious act itself and the place of its performance, the flagman was beyond the line of his employment and of the authority implied from it.

' But aside from-these questions of law, the .clear ground of fact on which we think the judgment should be reversed is, that the trespass complained of was not committed by him as flagman or with any reference to the business, property, rights or interests of appellant.

His own account of it is as follows: “When I came back they were playing there, and I went up to Boss and asked him what made him daub mud on the watelihouse. He said he didn’t do it.' I said, ‘George Dubes,told me you and he did, and that he oughtn’t to do it.’ I got him by the collar and he jumped out of"my hands, and the rail tripped him up and he fell down. He had a stone in his hand. I said, ‘you had better not hit me with that.’ He .followed me around the east track. I was going back to my shanty, and as I went back, I said, ‘you must not strike me with that.stone.’' I would go a step, and he would follow, me. When I would advance a step or two he would go back.. He foil owed me pretty near to the crossing, near the telegraph pole, and made three or four motions at me, and he says, ‘:I will strike you, you son of a bitch.’ That made- me mad and I .picked up a piece of coal, and threw at him and hit him.” On-cross-examination he said, “I threw it at him because I was excited from what he said to me. I didn’t like to be called a son of a bitch.”

■ Thus it is shown he setup no claim or pretense, that by this act he was attempting, or supposed he was attempting, to discharge any duty to the railroad company, but that it was done entirely on his own account. And -upon this point the testimony of the plaintiff himself is in-substance the same, and that of every other witness to it is entirely consistent with it. There is none to the contrary. We think it clear that op Tucker’s part, the altercation and all action growing out of or connected with it had ceased, and was resumed instantly and only upon the application of the offensive epithet. The finding of the jury that it was done in the line of. his employment) as flagman, and for the company, was wholly unsupported.

It is a just inference from the evidence, that had plaintiff been a man, Tucker would have pocketed the affront, as being purely personal to himself and which he could therefore treat as he might see fit, or else there would have been a fight made by him on purely- personal grounds, with no pretense of a purpose to remove a trespasser from the company’s right of way, or accomplish anything else in its behalf. And with such a fight the company would have had no right, as master, to interfere. It owed plaintiff no protection, nor could it, as master, require its servant to submit without resentment to insult from such a person. It might, indeed, for the act of so fighting, as for many others having no relation to his employment, such as beating his wife at home, rightfully discharge him from its service; but not because it was in violation of his duty to the company, nor by virtue of any right derived from their contract; that plaintiff was only a boy, and the fight therefore all- on one side, does not affect the principle.

It might be more plausibly claimed, that the first assault on the plaintiff was made, in part at least, in the interest of the company. But we think even that was not within the scope of Tucker’s authority. It was no part of his duty to chastise anybody for a trespass on the company’s property, ten days after its commission. Besides, the record contains no evidence that plaintiff was the trespasser.

But, as already observed, the proof is clear, that before he threw the coal Tucker had done and ended all that he supposed to be his duty or intended to do on account of anything the plaintiff had done affecting the company. He had actually turned away from the scene of the difficulty and was going back to his place on the street, without any attempt or any show of purpose to remove anybody from these grounds, when the new provocation, having no relation to the company or any of its affairs, induced the wrongful act in question. Manifestly it was not done to clear the right of way, nor otherwise in furtherance of appellant’s business, but in purely personal resentment of a purely personal affront.

The distinction is quite material between such a case and that of The N. W. R. R. Co. v. Hack, 66 Ill. 238, where the servant had no personal grievance, and the tortious act was naturally adapted to accomplish an object directly within the scope of his particular duties. And so of other cases cited.

Then, if everything previously done by Tucker had been within the line of .his employment, and the act in question in fact grew out of it and would not have been done but for what had previously been so done, still, if it was separated from all that preceded, and clearly distinguishable as to time, motive and object, and was on purely personal account of the servant, the company would not be liable for it upon any authority implied from its relation to him.

That such was the character of this act, we think, was abundantly proved, and we find no evidence to the contrary. The court below should, therefore, have set aside the verdict and awarded a new trial. For error in refusing so to do its judgment will be reversed and the cause remanded.

Reversed and remanded,.


author: Conger, J.

text:
    The Ohio, Indiana & Western Railway Co. v. Thomas J. Johnson, Administrator.

      Railroads — Personal Injuries — Servants — Brakeman — Projecting Water Spout—Jerk of Train—Evidence—Instructions—Damages.

    1. In an action to recover from a railroad company, damages for the death of one of its servants, through being struck by a projecting water spout, this court declines to interfere with a verdict for the plaintiff.
    2. An objection to an instruction touching the measure of damages will not be considered, where the sum awarded is less than the wages of deceased, less living expenses, would have amounted to up to the time of his becoming of age.
    [Opinion filed January 21, 1889.]

      . Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
    Messrs. Frank Y. Hamilton, James S. Ewing and C. W. Fairbanks, for appellant.
    Messrs. Neville & Lindley, for appellee.
    In ho case in the reports has it been held, in a suit by an administrator for injuries causing the death of a minor, where the next of kin was a parent, that the jury should be limited in the measure of damages to the loss of- services during .minority. i
    In Rockford, R. I. & St. Louis R. R. Co. v. Delaney, 82 Ill. 198, an instruction had been given at the instance of the pHintiff (p. 199), that as to the question of damages, they should take into consideration the value of- the services of the deceased from the time of his death until he would have been twenty-one years of age, deducting therefrom what it would be worth to feed and clothe him during that period, as proved. . ...
    This instruction was given at the request of the plaintiff, and was complained of by the defendant railroad company.
    The instruction do.es not limit, the jury, in estimating the damages, to the value of the minor’s services during minority, less the cost of food and clothing, but simply told the jury that they should take these things into consideration. The suit was for the death of a boy nine years of age.
    The court, on page 199, quote approvingly from their language in the case of The City of Chicago v. Scholten, 75 Ill. 468, in which they had said : * * * “ In such cases (?. e., where the next of kin is a parent) the pecuniary ■loss may bo estimated, .from the facts proven in connection with the knowledge and experience possessed by all persons in relation to matters of common observation. Ho doubt the damage could be greatly enhanced by proof of the jier- , so nal characteristics of the .deceased. Evidence of his mental and physical capacity to be of service to his father in business, his habits of industry and sqbriety, where the deceased was old enough to have an established character, are all elements to' be considered in assessing pecuniary loss sustained.” ■
    The parent is not limited in his recovery to damages for the loss of those services only, which he had a legal right to demand and enforce from the child. The pecuniary loss, which is for the jury to determine from the evidence, in many cases would be far greater. Indeed, in many cases where the minor was of a filial disposition,-a greater pecuniary loss might occur after the child would have reached its majority than while it was yet a minor.
    ■ On this subject of the measure of damages to a parent for the death of a minor child, we wish to call the court’s attention to what has recently been held by the Court of Appeals bf New York in the case of Birkett v. Knickerbocker Ice Co., 18 N. E. Rep. 108. The deceased, in that-case, was a minor daughter four and one half years of age.- We quote from the language of that court, on page 110: “ The jury were not bound, in estimating the compensation to be made for the death of the child, to confine their considerations to her Ininority.” *’ * * “In certain contingencies she might, after her majority,- owe him (the father) the duty- of support, •which could, by legal proceedings, be enforced, and after that event she might, in many ways, be of- great pecuniary benefit to him.” In estimating the pecuniary value of tliis child to her next of kin, the jury could take into consideration all - the probable or even possible benefits which might result to them 'from her life, modified, as in their estimation they should be, 'by all the chances of failure or misfortune. Birkett v. Knickerbocker ice Co., No. 18 N. E. Rep. 108-110; Potter v. Chicago, etc., R; R. Co:, 22 Wis. 615..
   Conger, J.

This was an action brought by appellee, who ■was the father and administrator of George L. .Johnson,, deceased, to recover damages for his death, upon the train of ■appellant, upon the 29 th of February, 1888.

The deceased, who was seventeen years old at the time of :his death, and had been working upon appellant’s road at odd times for a year or more, on the 14th of February signed an application for employment, in which his age was written twenty-one, and went to work upon the road as a brakeman.

The appellee testified that he told Green, the conductor of the freight train, not to employ his son, as he was too young for such work. This conversation is denied by Green. On-the 29th day of February, 1888, conductor Green’s train, the local freight, consisting of seventeen or eighteen cars, with a coal car next to the engine, and immediately behind the coal car two Illinois Central box cars, was going east from Peoria to Bloomington.

About three-fourths of a mile west of Bloomington is Sugar Creek, and the railroad from the west has a slight down grade to the bridge across the creek.

About fifty or sixty feet west of this creek, on the south side of the track, appellant had, a few months previous, erected a temporary water station, for the purpose of supplying their engines with water; the pipe was of iron, two and one half inches in diameter, and stood five feet south of the rail, eleven feet and four inches high, with a horizontal arm seven feet long, which would turn on the upright ; at the end of the horizontal arm another pipe extended downward two feet and e:ght inches. This swinging horizontal arm it was intended to bring over the tank of an engine, when needed, and when not in use it was swung back, so as to stand parallel or nearly so to the track, and there it was held in place by a wire attached to a stake standing in the bank.

At the time of the accident it was not in use, and there is evidence tending to prove that the wire was not fastened to the arm, and nothing to prevent its swinging around, except the fact that the upright pipe leaned a little away from the track.

The last that was seen of deceased before the accident, was just as the train was descending the grade to Sugar Creek, a Mrs. McGraw saw him sitting on the south side of the coal car, with his feet inside; just then she says the engine whistled, and the train gave quite a heavy jerk.

L Just as the wliist e sounded, she says, ho began to raise upon his feet, and at that moment the smoke came between them, and she lost sight of him.

Green, the conductor, says that this jerking was only the ordinary jerk caused by taking up the slack of the train.

When the train reached the crossing near Bloomington, it was found that deceased was not on it, and on going back, he was found lying at the foot of the hill, which is there about sixteen feet high, and about eighteen or twenty feet east of the water spout. He was struggling and endeavoring to rise, but was unconscious, and remained so until his death, a few days afterward.

He had a wound upon his head, upon a line with the top of his right ear, about an inch and a half back of the ear. The inner table of his skull was broken. The wound extended about an inch to an inch and a quarter across his head. The cap of deceased had a straight cut in it, at the spot which would be over the wound on his head, when worn. Nothing was found on the side of the ba dc or at the foot where he lay, of such a nature as to account for the wound. No mud was found upon the cap, although the ground was muddy. The only indications showing when deceased first struck the ground, were his foot-prints at one point only, some six or eight inches deep in the mud, and pointing in the direction where he was found.

While it is impossible to say just what position deceased was occupying at the time of the accident, it seems quite probable from the foregoing facts and circumstances that he was struck by the end of the xvater-spout and thrown from the train. His cap not being muddy, and the two foot-prints, seem to show clearly that he did not fall upon his head, but must have first struck upon his feet and then rolled down the bank; there were no rocks or timbers, or anything with sharp edges or corners on the side of the bank to cause the wound. We are not prepared to say that the jury might not properly find that deceased was struck by this water-pipe.

That it was negligence in the company to leave it in the ■ condition shown by the evidence, we think is clear.

If the wire was broken, as contended, it was at liberty to swing around and stand directly over the track.

Objection is made to the instructions in reference to the ■measure of damages, but it is unnecessary to notice the objection, as the amount of the verdict is less than the wages of deceased, after deducting his living expenses, would amount to up to the time he reached his majority.

As to the other instructions we think they are substantially correct. ,

Believing that substantial justice has been done, the judgment will be affirmed. . ■

Judgment affirmed-


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    Joseph N. Langston v. William H. Murphy.

      Exemptions—Failure of Debtor to Sign Schedule—Replevin—Duty of Officer.

    1. A constable, endeavoring to enforce an execution, must act in. good faith toward a debtor who is honestly seeking to avail himself of the benefits of the law relating to exemptions.
    2. It is a fraud on the part of a constable to receive, and attach1 his jurat ■■to, a schedule,’without calling the attention of the debtor to the fact.that it is unsigned.
    3. An action of replevin may be maintained by a debtor to recover property named in his schedule, which was made in apt time but" was delivered to the officer unsigned through honest mistake, he subsequently offering to sign the same or make another. . ...
    [Opinion filed January 21, 1889.]
    Appeal from the Circuit Court of Sangamon County; the Hon. J. A. Creighton, Judge, presiding,
    Mr. Timothy McGrath, for appellant.
    Messrs. Patton, Hamilton & Shutt, for appellee.

      . In this case the schedule was made and delivered to the officer, and he accepted it within the ten days. No objection, was made by him that it was not subscribed, but on the contrary, he swore appellee had received it. It was his duty to object to it at the time. When he put the jurat to the paper he knew appellee had not signed it, and failing, to call his attention to the omission, the officer waived objection to the schedule.
    In Pensoneau v. Masse rang, 8 Ill. App. 298, the court, in speaking of the conduct of the "constable to whom the debtor had tendered his schedule, say: “ He made no objection to the form or substance of the schedule. He can not now say that the schedule was not a. compliance with the law.” That was when the constable refused to receive the schedule, or even examine it. .Here the constable actually accepted the paper without objecting to either its form or substance, and when appellee applied to him as soon as he learned he had not signed it, appellant refused to let him subscribe his name. His conduct in not calling , appellee’s attention to the omission and thereby giving him the opportunity to make a complete schedule, was as reprehensible as that of the officer in the case cited.
    In Taylor v. Beach, 14 Ill. App. 259, it was held that the officer should be estopped from averring that the schedule "was not made in time after, having accepted it.
    Having accepted the schedule without objection, he had no right to levy upon the property described in it after the expiration of the ten days. He should have rejected it, and to remain silent when it was his duty to speak, was a fraud upon appellee and he should be estopped from taking advantage of if. The jurat of the officer sho-wed the schedule was sub'scribéd and sworn to by appellee, the execution debtor, and the officer should not be allowed to contradict his own certifícate to the effect that the instrument was duly executed.
   Conger, J.

Langston was a constable, and had an execution against Murphy, who was the head of a family residing with the .samé, and had property less in value than the amount exempt by law. -

After Murphy, was -notified of- the execution, and within the time prescribed by law, ho made and tendered to the constable a schedule, to which the constable swore him, and received it and took it away with him.

Eleven days thereafter, Murphy learned that he had not signed his name to the schedule, although it is admitted that he thought he had done so at the time of, or before its delivery to the constable. He then offered to sign it, or make out a new one, but Langston refused both'propositions, and levied upon the property.

Murphy, after making a demand, brought replevin and recovered the property, and we think rightly.

It was a fraud upon the part of the officer to receive the schedule, and solemnly attach his jurat to it, without calling the attention of Murphy to the omission.

Such a schedule, when executed in good faith, would be a protection to the officer in refusing to make a levy.

It is the duty of a constable in seeking to enforce an execution. to act fairly and in good faith, and not use the provisions of the exemption law as a trap to catch those debtors who are honestly and in good faith seeking to avail themselves of its benefits. The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


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    Illinois Central Railroad Company v. James A. Trowbridge.

      Railroads—Occupation of Part of Highway—Duty to Fence—Injury to Stock—Contributory Negligence—Comparative Negligence—Burden of Proof—Ordinary Care—Evidence—Instructions.

    1. Under Sec. 62, Chap. 114, Starr & O. Ill. Stat., a railroad company-must fence its track legally occupying a portion of a country road,
    2. In such cases, damages maybe recovered for injury to horses being driven with due care on the highway, which result from failure to fence.
    3. Ordinary care is an essential element on the part of the injured party to authorize a recovery.
    4. In the absence of evidence showing negligence on plaintiff’s part, a
      prima facie case is made oat by proving the injury and the absence of a fence.
    5. Where it appears that the action of the animals injured was controlled by the conduct of their owner or driver, in such manner as to affect the right of recovery, the burden of proof is upon him to show due care.
    [Opinion filed February 21, 1889.]
    Appeal from the County Court of De Witt County; the-Hon. George K. Ingham, Judge, presiding.
    Messrs. Moore & Warner, for appellant.
    A railroad company is not bound- to fence its track at all places not excepted by the statute. The proper test in determining whether the company is required to fence at a designated place is, is the place a public one? Such a place is .not within the spirit of the statute, and where a railroad track occupies a part of a public highway, the company is not required, and would not be permitted, to maintain a fence along the side of its track in such highway. 1 Thompson on Negligence, 519, 521; Patterson’s Railway Accident Law, page 157; Railway Co. v. Hans, 111 Ill. 114; Railway Co. v. Chapin, 66 Ill. 504; Railway Co. v. White, 94 Ind. 257.
    A man can not voluntarily place himself, by intoxication or otherwise, in a condition whereby he loses such control of his brain or muscles, as a man of ordinary prudence and caution in the full possession of his faculties would exercise, and by such loss of control contribute to an injury to his property, by an engine of a railroad company being propelled upon its road with ordinary care and caution, and then hold such company liable for such injury. Strand v. Railroad Co., ll Western Reporter, 538.
    The burden is on the plaintiff to show that he used ordinary care, and the court erred in instructing the jury on behalf of appellee that the burden of proof was on the appellant, and that unless they believed that the appellant had the preponderance of the evidence on that issue, they would find for the appellee. Dyer v. Talcott, 16 Ill. 300; Railroad Co. v. Jones, 20 Ill. 221-227; Railroad Co. v. Todd, 36 Ill. 409; Railroad Co. v. Seirer, 60 Ill. 295-300; Railway Co. v. Dimick, 96 Ill. 42; Calumet Iron and Steel Co. v. Martin, 115 Ill. 358; Price v. Henagan, 5 Ill. App. 234; Railroad Co. v. Robinson, 8 11 Ill. App. 140; Railway Co. v. Thorson, 11 Ill.,App, 631; City of Galesburg v. Benedict, 22 Ill. App. 111; Shearman and Redfield on Negligence, Sec. 43.
    Instructions given for the plaintiff in such cases should not omit to state that it is necessary for the plaintiff to show that he was exercising ordinary care. Railway Co. v. Freeman, 6 Ill. App. 608; Railway Co. v. Dimick, 98 Ill. 42.
    When the plaintiff’s own negligence has contributed to the injuries' complained of, he can not recover by reason of the negligence of the defendant, unless such negligence of the defendant was gross as compared with that of his own. Railway Co. v. Berlink, 2 Ill. App. 427; Railroad Co. v. Brookshire, 3 Ill. App. 225; Railroad Co. v. Colwell, 3 Ill. App. 545.
    But it has never been the Jaw of this State that .the negligence of the parties could be weighed in a scale, when, if it inclined at all in. favor of the plaintiff, he, • might recover. Earlville v. Carter, 2 Ill. App. 34.
    , If the appellee was guilty of negligence that contributed to the injury, then appellant would only be liable.for gross negligence, which implies wilful injury. Railroad Co. v. Todd, 36 Ill. 409; Railroad Co. v. Middlesworth, 48 Ill. 64; Railway Co. v. McGinnis, 71 Ill. 346.
    Messrs. Graham & Monson, for appellee.
    We think the only matter to be presented to this court for its serious consideration is embraced in the sustaining of the demurrer-to .the special plea: This .presents the question to the court whether, under the statute (Sec. 62, Chap. 114, Starr and C. Ill. Stat.,) requiring railroad companies to fence their tracks, except at the crossings of public roads and -highways, and within-such portion of cities-and incorporated towns and villages as are lotted and platted into lots and blocks, etc., and 'fixing their liability for a failure so to fence, they would be .liable for not fencing where their track is partly built upon the margin of a public - highway. The position' taken by counsel for appellant, “ that the railroad company having built their track on a part of the public highway, by the license and permission of the public, they were not required and would not have been permitted to erect, in the public highway, a fence by the side of its track,” is not warranted by the law. In the first place, if permission from the public would authorize the building of a railroad along and upon the margin of a public highway, that permission would carry with it the right and authority to operate the road and to comply with the requirements of the statute in respect thereto. Where the Legislature has made a law, as in this instance, pointing out specifically where and at what particular places railroad companies will not be required to fence, and requiring all other places to be fenced, we think there can be no room for construction, unless it might be to include places to facilitate the business of the public with the railroad company, and this court must enforce the law as they have made it. The law is a reasonable one, and was made to protect the property of the public along the lines of railroad companies from the dangers to stock in their operation, and it would be an unwarrantable and forced construction to say that the Legislature had made a law for the protection of property owners, requiring railroad companies to fence their tracks and yet allow them to leave the same exposed at the most dangerous places along their lines, and where fencing could be done without inconvenience, either to the railroad company in operating its road, or to the public in its use of the highway.
    The sixth instruction is claimed by counsel to be erroneous, because it instructs the jury that the burden of proof was on appellant, to show negligence on the part of appellee. This, we think, was a proper instruction, and embodies the law applicable to this case. A prima facie case is made out by the plaintiff, when he shows that the railroad company has failed to fence, within the tipie prescribed by law, and the killing of stock. R. R. I. & St. L. R. R. Co. v. Lynch, 67 Ill. 149.
    The special plea filed by the defendant charges negligence on the part of .the plaintiff, and it assumes the burden of proving the plea.

      In a prosecution under this statute it is not necessary to aver that the plaintiff was using care and diligence; and if the defendant desires to make that issue, must do so by special plea; and when só done must assume the burden of proving it.
    The requirement to fence track and put in cattle guards is simply a police regulation, and the attorneys’ fees fixed by the statute is a penalty for the violation of it. Railroad corporations are subject to police regulations the same as individuals, and any reasonable law passed by the Legislature for the protection of life and property, will not he held by this court or any other court of respectable authority, to be unconstitutional. O. & M. R. Co. v. Russell, 115 Ill. 52.
   Conger, J.

The facts necessary to an understanding of this case are as follows:

In October, 1887, and for some years prior thereto, appellant had a line of railroad extending bast and west through the county of DeWitt, known as the Champaign and Havana Line.” When this line was constructed, by the license and permission of the highway authorities, a part of its road-bed was placed along, in and on the south side of a public highway, commencing at a point about three miles west of the city of Clinton in said De Witt county, and extending westward about one and one-half miles, which has been used since that time by such license and permission for railroad purposes, the public continuing to use the remainder of said highway not actually occupied by the railway track for public highway purposes.

The railroad track comes onto the public highway from the south, and occupies a part of the south half of the same until it leaves it, not crossing it between the two points, and leaving ample room for public travel throughout the whole distance.

There was no fence between the railroad track and the part used by the public as a wagon road. Thepartof the highway used jointly is crossed by a creek called Barnett’s Branch.' The railroad crosses this creek by a trestle, and the wagon road by descending and ascending hills that are rather steep, and from 100 to 150 yards long on each side. About three-fourths of a mile further west the highway and railroad track are crossed by another branch or ravine, which is crossed by the railroad by a bridge or trestle fifty or sixty feet long, and about fifteen feet high; except at these two branches or ravines the railroad track and the wagon road are on a level.

On the 15th of October, 1887, appellee, driving a team of horses, was passing along this portion of the highway about seven o’clock in the evening, when his team ran away, broke loose from the wagon and ran upon the track and into the last mentioned trestle, or bridge, where about eight o’clock of the same night they were struck and killed by a locomotive on appellant’s road. The night was dark so that the engineer could not see the horses in the bridge until too late to stop, and no negligence is chargeable to him.

To the declaration there were filed three pleas-: first, the-general issue, and two others.

The second plea avers that at the said times and places in said declaration mentioned, defendant’s said railroad was constructed and then and there being operated along and upon a part of a certain public highway then and there being in said county, and had been so constructed and operated by the license and permission of the public for more than twelve years prior thereto, the public then and there using and occupying the remainder of said public highway at said places, and that said places were then and there within a part of said public highway; and the defendant was not then and there required or allowed to either construct or maintain either a fence or cattle guards at said places to prevent horses from getting upon said track, and that said horses got upon said track from said highway and were killed at said places, without any fault or negligence on the part of the defendant, its agents or servants.

The third plea avers that at the said times when, etc., the plaintiff carelessly, negligently and wilfully caused and permitted said horses to run away and get upon said track and into a bridge, then and there being, of the defendant, and then and there carelessly, negligently and wilfully permitted said horses to remain in said bridge until they were approached and struck by an engine then and there being propelled by the defendant along its said road with all due care and caution, and that defendant used all possible means to prevent any injury being done said horses, after learning that they were on its said track and in its said bridge, and that said carelessness, negligence and wilfulness of the plaintiff directly contributed to the deaths of said horses.

A demurrer was sustained to the second plea, and issue was joined and trial had upon the first and third, which resulted in a verdict and judgment against appellant for $275.

It is insisted that the second plea presents a good defense, and that it was error in the court below to sustain a demurrer thereto.

The precise question has not been passed upon by the Supreme Court, nor have we been cited to any authority that, in our judgment, squarely decides the question presented by the plea. In Thompson on JSTegligence, 521, it is said:

“ The proper test, as deduced from the American cases, of whether or not a particular place ought to be fenced by a railroad company, seems to be the fact of its being in law a public place, joined with the fact of its practical user by the public. Although it be in law a public place, still, if for any reason it be not used and is not likely to be used as such by the public, the road must be fenced.”

We are inclined to think if the public authorities consented that the railroad company might use a part of the highway for its road-bed, such consent would carry with it the right and authority to do all that was necessary in its operation and management to comply with the law. The law requires the company to fence its road, except at the crossing of public roads and highways, and within such portions of cities and incorporated towns and villages as are platted into lots and blocks, etc. The place described in the plea is not within the letter of the exceptions, nor do we think it is within the spirit.

The object to be attained by the law in requiring railroad tracks to be fenced, is to protect persons and property upon the railroad, and animals running at large, from being injured. In this case the ordinary dangers are greatly increased. For a mile and a half the highway and railroad run side by side, but a few feet apart, exposing persons passing along the highway with teams, to the danger of collision with passing trains, when such teams should become frightened and unmanageable.

„ When the authorities surrendered this portion of the highway and the company accepted it, it must be presumed that both parties intended that the law should be complied with by inclosing that portion so surrendered with a fence, and thereby give the protection to both the company and the public, that the fencing law was intended to supply. We are, therefore, of opinion that the demurrer to the second plea was properly sustained.

The second instruction for plaintiff, after alluding to the duty of the company to fence, uses this language: “ The

neglect of the defendant to erect and maintain suitable and sufficient fences as required by law, and as explained in the preceding instructions, fixes the liability of the defendant for the killing of said horses, provided the plaintiff was guilty of no negligence contributing to the injury, of if guilty of negligence, that the negligence of the defendant in not fencing was of a higher degree than that of the plaintiff.” The fourth instruction told the jury that though the plaintiff might be guilty of negligence in permitting the horses to escape and get upon the track, still he could recover if the defendant was guilty of greater negligence in failing to fence; while in the sixth instruction the jury are told that upon the question of the plaintiff’s negligence, the defendant has the burden of proof.

These instructions are all erroneous. We are referred to R. R. I. & St. L. R. R. Co. v. Lynch, 67 Ill. 149, as authority for these instructions, in-which the following language is used by the court:

“ The third (instruction) informed the jury that although the company had neglected to fence its road, yet the plaintiffs must prove that the injury resulted from such failure to fence, and must prove negligence in othpr respects. This required more of the plaintiffs than the law does. They need only prove the injury by the trains of the company and its neglect to fence, and thus a prima faoie case of liability is made.”

. This is the rule in all cases of injuring animals by railroad trains where the agency or control of the owner or those in charge of them is not a factor in the case.

But when it appears that the actions of animals are controlled by the conduct of the owner, or others representing him, in such a way as to affect the right of recovery, then it devolves upon such owner to show affirmatively upon his part the proper degree of caie, before he can recover.

It was the duty of the company to fence its road, and in failing to do so it was guilty of negligence; but the failure of the company to perform its duty would not absolve the plaintiff' from using ordinary care to prevent the injury to his horses. St. L., A. & T. H. R. R. Co. v. Todd, 36 Ill. 409.

The duty of using ordinary care rested upon the plaintiff, and it devolved upon him to show such care or he could not recover; hence it was error to instruct the jury that upon this question the burden of proof rested upon the defendant..

The second and fourth instructions are erroneous in not correctly stating the doctrine of comparative negligence. In the second it is said, if the negligence of the defendant was of a higher degree than that of the plaintiff, while in the fourth the jury are told that if the defendant was guilty of greater negligence than the plaintiff, in either of such cases, the plaintiff-might rec&ver. In Willard v. Swanson, 18 N. E. Rep. 548, (1888, not yet recorded), our Supreme Court say: “ AY hen the injury is not wilful, the law is well settled that a party, can not recover for an injury received, unless it appears from the evidence that he exercised ordinary care—such care as a reasonably prudent person will always adopt for the security of his person. This doctrine was announced at an early day in this court in R. R. Co. v. Jacobs, 20 Ill.488, and it has been reiterated in numerous cases since. R. R. Co. v. Johnson, 103 Ill. 517. The fact that the defendant may have been guilty of < gross negligence does not of itself authorize a recovery. A duty always rests on the injured party to exercise ordinary care, and unless that duty has been observed a recovery can not be had." In other words, ordinary care is an essential element on the part of the’injured party to authorize a recovery.”

The doctrine of comparative negligence as applied to cases where the injury is not wilful, seems to' be shorn of all practical meaning. A plaintiff can in no case recover unless he has used ordinary care, no matter how gross the negligence of the defendant, while if he has used ordinary care, his whole duty has been performed, and a comparison of his conduct with that of the defendant as to the question of negligence would seem to be useless.

We think the court below should have allowed more latitude in the examination as to the conduct and condition of the plaintiff, both upon the day of the accident and before.

If it could be shown that plaintiff had been drinking heavily for some days prior to the accident, it would be proper fact to go to the jury, that they might determine how far, if at all, it affected his mental or physical capacity to act with ordinary prudence and caution at the time his team escaped from his control.

Upon a new trial the declaration can be amended so as to inc'ude the attorney fee.

For the errors indicated, the judgment of the court below will be reversed and the cause remanded.

li ever sed and remanded.