author: Conger, J.

text:
    Terre Haute & Peoria Railroad Company v. Francis M. Barr.

      Railroads—Injury at Highway Crossing—Negligence—Failure to Give Statutory Signal—Obstruction to View—Contributory Negligence—Special In errogatories—Answers to—Evidence—Instructions.

    1. It is negligence in a railroad company to allow its right of way to Recome so grown with vegetation at a crossing as to obstruct, the view of ils servants approaching the same by train, or of persons upon the highway.
    2. It is prima facie negligence to omit the statutory signal upon approaching a crossing.
    3. It is not necessarily negligent in a person to fail to stop and listen upon approaching a crossing.
    4. In an action brought to recover damages from a railroad company for injuries received at a highway crossing, this court declines'to interfere with a. verdict for the plaintiff.
    ñ. The jury may answer that they do not know, in reply to special interrogatories touching matters to which the evidence does not warrant any other.
    [Opinion filed February 21, 1889.]
    Appeal from the Circuit Court of Logan County; the Hon. Cyrus Epler, Judge, presiding.

      Messrs. W. E. Lodge and Blinn & Hoblit, for appellant.
    Apply the principle of law laid down by our Supreme Court in L. S. & M. S. R. R. Co. v. Hart, 87 Ills. 529, to this case, and the plaintiff must fail. The court there say on page 534, that it is the duty of every person about to cross a railroad track to approach cautiously, and endeavor to ascertain if there is present danger in crossing, otherwise they can not recover for injury thereby received.
    Messrs. A. J. Barr and Beach & Hodnett, for appellee.
    Whether the son of appellee exercised due care and prudence was a question of fact and not of law. C., St. L. & P. R. R. Co. v. Hutchinson, 120 Ill. 587; C. & A. R. R. Co. v. Carey, 115 Ill. 115.
    Under the facts of this case the plaintiff .was entitled to recover. C., B. & Q. Ry. v. Payne, adm’r, 59 Ill. 534; St. L. & T. H. Ry. Co. v. Faitz, 23 Ill. App. 498.
    If there is evidence in the record when considered alone that is sufficient to sustain the verdict, that will be sufficient. Ill. & St. L. Ry. & C. Co. v. Ogle, 92 Ill. 353; Calvert v. Carpenter, 96 Ill. 63; Chapman v. Burt, 77 Ill. 337.
    Where the evidence is conflicting the verdict must be held to settle the questions of fact. Conrad Seipp Brewing Co. v. Doody, 25 Ill. App. 305; Winslow v. City of Bloomington, 24 Ill. App. 647.
    A charge of negligence presents a question of fact, and unless the verdict is clearly against the weight of the evidence it will be final. C., M. & St. P. R. R. Co. v. Krueger, 23 Ill. App. 639.
    Failure to ring bell or sound whistle makes pri?nafacie case of negligence. G. & C. U. R. R. Co. v. Loomis, 13 Ill. 548; C. & A. R. R. Co. v. Elmore, 67 Ill. 176.
    The jury are the judges of the credibility of the witnesses, and are not governed by the number of witnesses. K. N. L. P. Co. v. True, 88 Ill. 608.
    The general verdict was not in conflict with the special findings. C. & A. R. R. Co. v. Murray, 71 Ill. 601.
    It is negligence in a railway company to suffer weeds to grow on its right of way, to such a height as to materially obstruct the view of a highway crossing. I. & St. L. B. B. Co. v. Smith, 78 Ill. 112; 5. & M. R. R. Co. v. Clutter, 82 Ill. 123.
   Conger, J.

This was an action brought by appellee against appellant to recover the value of a team of horses killed, and harness destroyed, at a highway crossing known as Donigan’s crossing, by the engine of appellant, on the 30th day of July, 1888. On that day the son of appellee, aged about fourteen, with his mother, the wife of appellee, was driving appellee’s team and wagon toward the town of Atlanta. The wagon road upon which they were traveling ran north and south, and about one mile east of Atlanta crossed the appellant’s railroad track, which runs nearly east from Waynesville to Atlanta.

At the crossing, the railway track and highway are about the same level; along the highway, on the east side, is a high hedge, from twelve to eighteen feet high, and extending up to within about, ten feet of the railroad track, where it joins a single panel of fence which connects with the cattle guard. From this hedge eastward upon the south side of the right of way, and about twenty-three feet from the center of the railroad track is another hedge, from eighteen to twenty feet high, the branches of which hung over to within five or six feet of the track.

These hedges obstruct the view of the track as one is approaching it from the south.

One witness, who made observations and measurements after the accident, testified that he had to get within two feet of the railroad track before he could see the track past the cattle guard. To further obstruct the view, tall weeds, ten or twelve feet high, were allowed to grow on the south side of the track, and on the right of way, at the east side of the road-crossing.

The train which caused the accident was some two hours late. It was a freight train, composed of engine, three freight cars and a caboose, and steam had been shut off before reaching this crossing, the grade slightly descending from the cast to the west at that point.

The team of appellee was in the act of crossing, whether in a walk, or a slow trot, is not certain, when appellant’s train appeared from behind the hedge, striking the horses behind the shoulders, killing them, together with the wife and son of appellee.

The fireman who was upon the south side of the cab, and ringing the bell and looking ahead, as he says, did not see the horses until the engine was within twenty or thirty feet of the crossing. The engineer never saw them until their heads appeared upon his side (the north side) of the head-light an inslant only before the collision occurred.

There are two charges .in the declaration of negligence: A failure to give the statutory signals, and allowing the'right of way to be obstructed by weeds and these hedges.

It was a very dangerous place, and it was the duty of appellant’s servants to have complied strictly with the law in reference to the giving of signals. Upon this question there was a sharp conflict in the evidence; and even if, from a consideration of it all, we should have' reached a different conclusion from that of the jury, (upon which we express no opinion) there was evidence to justify the verdict of the jury upon that point.

It seems to us that a bare statement of the condition of the right of way at this crossing sustains the charge of negligence against appellant.

In Ind. & St. L. R. R. Co. v. Smith, 78 Ill. 112, it is said : It was negligence in the company to permit or suffer weeds or anything else to grow upon its right of way to such a height as would materially obstruct the view of the highway. The safety of persons and property alike make it necessary that the company should keep its right of way free from obstructions, so that persons approaching the crossing may readily ascertain whether there is danger, and the employes in charge may he enabled to discover whether there is anything on the track.” It was not error for the court to give the fifth instruction, which was in substance that if the servants of appellant omitted to give the signals for the crossing required by law, such omission constitutes a jprima facie case of negligence. Galena & Chicago U. R. R. Co. v. Loomis, 13 Ill. 548; 1. C. R. R. Co. v. Gillis, 68 Ill. 317. An omission to perform a statutory duty is prima facie negligence. St. L., J. & C. R. R. Co. V. Terliune, 50 Ill. 181.

Appellant complains because the jury, in answer to two of the special interrogatories, said they did not know. They were as follows:

“No. 3.' Did the plaintiff’s son drive the team in a trot upon the railroad crossing when they were killed, without stopping to listen for an approaching train? Answer. Do not know'.”

“No. 5. If the plaintiff’s son, who was driving the team of horses that was killed, had stopped and listened for an approaching train a short distance before approaching the railroad track, would or could he have heard the approaching train that killed the horses? Answer. Do not know.”

The witness Shaw, who was driving behind appellee’s team as it went onto the crossing, says, in reference to the gait of appellee’s team at that time: “They were going in a shack

of a little trot, I supposed while Shay, the fireman, says: “ Why, it seemed they were walking or coming upon the crossing when I seen them come on; either walking or in a jog when I first seen them.” This was the entire evidence upon this point, and from it we are not prepared to hold that the jury failed in their duty in answering number three as they did.

The fifth interrogatory could not be satisfactorily answered. Shaw, who was behind appellee’s team, said he did not hear the train, although it must have been very close, for an instant afterward it rushed into sight from behind the hedge and weeds at the cattle guard, not more than thirty feet from the team. The train was running down a slight grade without steam, and we do not think the jury were required to say, by their finding, as a matter of fact, whether the boy could or not have heard the approaching train had he stopped and listened.

It is also insisted that the evidence shows negligence on the part of appellee’s son. This was a question of fact for the jury. This court has held that it can not be laid down as a principle of law that it is necessarily negligent for one about to cross a railroad track not to stop and' look for trains. It may be so under some circumstances, and under others, not.

And when the jury have said, as they did by their verdict in this case, that under all the circumstances attending this unfortunate accident there was ordinary care upon the part of appellee’s son, we see no good reason for interfering.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Wall, P. J.

license: Public Domain

text:
    Village of Clayton v. Louisa W. Brooks.

      Municipal Corporations—Defective Sidewalk—Personal Injury—Contributory Negligence—Ordinary Care—Notice—Remittitur—Evidence— Instructions—Special Findings.

    1. The question of ordinary care on the part of a person injured by reason of a defective sidewalk, is for the jury.
    2. It is not negligence per se to pass over a sidewalk known to be out of repair.
    8. If the declaration contains averments covering the defect which caused the injury, evidence fully descriptive of the walk maybe admitted.
    4. The practice of entering a remittitur of a portion of the damages in cases sounding in damages', to avoid a new trial, is well settled in this State.
    [Opinion filed February 21, 1889.]
    Appeal from the Circuit Court of Adams County; the Hon. William Marsh, Judge, presiding.
    Mr. William MoFadon, for appellant.
    We insist that appellee can not recover and for these reasons :
    From the prior knowledge of appellee of the existence of the hole which caused her injury, and of the fact that the walk was thereby made dangerous, one or other of the following two results legally follow:
    1. That appellee was herself guilty of and brought her injury upon herself by her own contributory negligence; for it is apparent that by the exercise of ordinary care, she could have gone around the hole without leaving the sidewalk, or, had she provided herself with a light, she could have stepped over it, or gone around it, and have easily avoided it entirely. See, expressly, Indianapolis v. Cook, 99 Ind. 13; Schaefer v. Sandusky, 33 O. S. 249; Farnum v. Concord, 2 N. H. 392; Barker v. Covington, 69 Ind. 36; Fulsom v. Town of Underhill, 36 Vt. 591; President, etc., Earlville v. Carter, 6 Ill. App. 422; City of Aurora v. Brown, 12 Ill. App. 129; Chicago v. Bixby, 84 Ill. 85; Centralia v. Krouse, 64 Ill. 19; Mt. Vernon v. Dusenchett, 2 Carter (Ind.), 587.
    2. That appellee was not in the exercise of that degree of care which she must show as a condition precedent to recovery. City of Aurora v. Brown, 12 Ill. App. 129; Village of Momence v. Kendall, 14 Ill. App. 232; I. C. R. R. Co. v. Green, 81 Ill. 20; C. & A. R. R Co. v. Becker, 76 Ill. 27.
    If the plaintiff, knowing, as she did, of the existence of the defects in the walk, and that the walk was thereby made dangerous, chose to pass over it late at night and when it was so dark that she could not see holes in it, sh>3 took the risk upon herself and can not recover for her injury in so doing. Farnum v. Concord, 2 N. H. 292; Horton v. Ipswich, 12 Cush. 488; Wilson v. Charlestown, 8 Allen, 138; Burker v. Covington, 69 Ind. 36; Indianapolis v. Cook, 99 Ind. 13.
    Messrs. H. M. Swope and Carter & Govert, for appellee.
    Appellee was not guilty of such negligence as would preclude a recovery, simply because she went upon the sidewalk after she knew it was defective or dangerous. City of Aurora v. Dale, 90 Ill. 47; City of Bloomington v. Chamberlain, 104 Ill.273; City of Joliet v. Conway, 17 Ill. App. 577; Lovenguth v. City of Bloomington, 71 Ill. 240; Ellis v. Peru, 23 Ill. App. 35; McKinzie v. Janesville, 31 N. W. Rep. 302; Kendall v. City of Albia, 34 N. W. Rep. 833; Osborne v. Detroit, 32 Fed. Rep. 39. and cases cited; Shook v. City of Cohoes, 15 N. Y. Rep. (N. Y.) 531.
    A party passing over a dangerous walk is only required to do so in a careful and guarded manner. Lovenguth v. Bloomington, 71 Ill. 240.
    Whether or not appellee was in the exercise of ordinary care for her own safety under all the circumstances is a question of fact for the jury. Chicago, St. Louis & P. R. R. Co. v. Hutchinson, 120 Ill. 587; C. & A. R. R. Co. v. Bonfield, 104 Ill. 226; City of Chicago v. Keefe, 114 Ill. 228; Kendall v. City of Albia, 34 N. W. Rep. 840 ; Penn. Company v, Frana, 112 Ill. 398; McKeigue v. Janesville, 31 FT. W. Rep. 302; Lovenguth v. Bloomington, 71 Ill. 238; Mechanicsburg v. Meredith, 54 Ill. 84; Shook v. City of Cohoes, 15 N. E. Rep. (N. T.) 531.
    In this last case the court said: “ The trial judge could not properly rule, as a matter of law, that she was guilty of culpable imprudence in attempting to pass over the obstructions upon the sidewalk, although they were known to her.” Pomfrey v. Village, 104 N. Y. 459.
    The fact that appellee did not go out into the street and around the defective walk does not show such a want of care on -her part as to preclude a recovery. City of Aurora v. Hillman, 90 Ill. 61; Bloomington v. Chamberlain, 104 Ill. 268 ; Mary Ellis v. Peru, 23 Ill. App. 35 ; Joliet v. Conway, 17 Ill. App. 577; same case, 119 Ill.489; McKeigue, adm’r, etc., v. Janesville, 31 N. E. Rep. 302; Kendall v. City of Albia, 34 N. W. Rep. 340.
    The act of a party in voluntarily attempting to pass over a street which he knows to be defective or obstructed will not, necessarily debar him from recovering damages from the municipality in case of injury. A municipality can not, by failing to keep a street in repair, deprive the public of the right to use it absolutely. The question of contributory negligence is for the jury. Frost v. Waltham, 12 Allen, 85; Rindge v. Colrain, 11 Gray, 157; Whitaker v. West Boylston, 97 Mass. 273 ; Pollard v. Woburn, 104 Mass. 84; Humphreys v. County, 56 Pa. St. 204; Weed v. Ballston, 66 N. Y. 329 ; Wheeler v. Westport, 30 Wise, 392.
   Wall, P. J.

This was an action on the case by appellee against appellant for injuries sustained by reason of a defective sidewalk. The appellee recovered a verdict for $4,800, of which she was, by the court, required to remit $2,300, and judgment was entered for $2,500, from which an appeal is prosecuted to this court. Various errors are assigned, but we shall not notice all in detail, and will refer only to the more important features.of the case. It is urged with great apparent earnestness that the plaintiff knew of the defect and was guilty of such want of ordinary care as to prevent recovery. She admits that she did know of it, and that she was carefully trying to avoid it, when, in spite of her care, she stepped into it, but that in the darkness she could not tell exactly where she was. It is urged that knowing the danger she had no right to undertake to pass over the place in the night time, and that it was her duty to take another route whereby she might have gone more safely. There was another route but it was very indirect, and was, according to a special finding of the jury, 531 feet further. Assuming it was safe, and that she might have gone that way, it does not follow she was required to do so.

The defect in question was quite a small break or hole in the walk and she might well suppose she could avoid it. The question was for the jury whether, under the circumstances, she used ordinary care, and considering it all, we have no disposition to disagree with the conclusion arrived at. It is not per se negligence for one to attempt to pass over a sidewalk known to be out of repair, though of course more care is required than if there was no notice of the defective condition. City of Joliet v. Conway, 17 Ill. App. 587; Ellis v. City of Peru, 23 Ill. App. 35; City of Aurora v. Dale, 90 Ill. 47; City of Bloomington v. Chamberlain, 104 Ill. 273; Dillon, Municipal Corporations, Sec. 1026, Note 3. Many authorities are cited by counsel in support of his position on this point, and no doubt the facts in the particular cases abundantly justified the judicial expressions quoted. In this case the question is whether the court can say that such action of the plaintiff was so negligent as to require the finding of the jury to he set aside, and we have no hesitation in giving a negative reply.

The village had notice through its street commissioner, that the walk, was out of order, and it had been in that condition so long that the jury might properly infer notice. It is urged the damages are excessive. The verdict returned by the jury was deemed too large by the court and a remittitur of nearly one-half was required. This practice rests upon a long line of precedents in this State, and where the final judgment is not unreasonably great the error in the verdict is held cured. Considering the nature of the injury shown by the evidence we are not prepared to say the judgment is too large. The injury was severe, involving great suffering, expense and loss of time, and is probably not more than recompensed by the sum allowed.

It is objected the court permitted evidence that the board was rotten and that there were other holes in the walk than the one stepped into, and that this was error, because no such precise condition was described in the declaration. It was competent to prove the condition of the walk, and it was not necessary that the declaration should set out and describe all the imperfections that existed. There was such averment as would include the defect causing the injury, and it was not error to permit a full description of the walk. Other objections to the admission of evidence need not be referred to, as we consider them immaterial. Much of the argument is occupied by criticism of the instructions given for plaintiff and the action of the court as to those refused or modified for defendant. The court gave seventeen instructions for plaintiff and some twenty or more for the defendant.

It is therefore apparent that the volume was enough. Too many were given, but we shall not undertake to follow counsel through the consideration of them separately. After careful reading of the entire series 'we find no substantial cause of complaint in those given for plaintiff, and with respect to those refused for defendant it suffices to say that so much of them as was proper to be given will be found in those that were given.

The modifications objected to were not erroneous in substance, and regarding the whole body of those given for the defendant we think there is no just reason to object. The law was presented as favorably for defendant as it had a right to ask, if not more so.

As we regard the case, the important and controlling question is whether the plaintiff was guilty of a want of ordinary care in going upon the walk at the time she did, and with the knowledge she had. On this it all depends. The point is pivotal, and if, as to this, the jury were correctly instructed, we think the judgment must not be disturbed. In our view of the law the jury were well advised.as to this and other vital features of the case.

The special findings seem to consist with the general verdict, and in view of the great mass of evidence in the record it may be presumed the case was as fully presented, on the facts, as it ever can be.

The judgmént will be affirmed.

Judgment affirmed.


author: Congee, J.

text:
    Michael Harting v. George Jockers et al.

      Administration—Arrangement in Fraud of Creditors—Transfer of Property in Consideration of Support—Intention—Jurisdiction.

    1. A debtor can not, as against his creditors, transfer all his property to another to secure his future support.
    2. The intention of the parties to such a conveyance is immaterial.
    3. The fact that a fraudulent contract has been fully executed does not affect, the right of an injured creditor to interfere.
    4. The Circuit Court has jurisdiction of a bill filed by the holder of a note given previously to a transfer of this character by its deceased maker, it being sought to reach the fund in question for the satisfaction thereof. The County Court has no adequate remedy.
    [Opinion filed February 21, 1889.]

      Appeal from the Circuit Court of Jersey County; the Hon. G. W. Heedman, Judge/presiding.
    Amended hill:
    Humbly complaining, your orator, Michael Hurting, by this, his amended bill of complaint herein tiled by leave of the court first had and obtained, represents and shows unto your honor, that on the 17th da)7 of June, 1870, one Jacob Huester, Sr., for value received by him, executed and delivered unto one Jacob Huester, Jr., his certain promissory note of that date, for the sum of four hundred and forty dollars ($440), payable to said Jacob Huester, Jr., or order, one year after date, with interest thereon from date, at the rate of ten (10) per centum per annum. And your orator shows unto your honor that thereafter, to wit, on the 29th day of December, A. D. 1870, said Jacob Huester, Jr., for value received by him from your orator, by his written indorsement thereon, transferred and assigned said promissory note to your orator, and he further shows unto your honor that at the date of said promissory note, and at the date of the assignment thereof, said Jacob Huester was solvent and amply responsible for said debt, and so continued to be solvent until within a short period prior to his death, as hereinafter set forth; your orator shows unto your honor that said Jacob Huester was a near relative of the wife of your orator, and was far advanced in years, being eighty-one years of age, and had often said that he intended to make a will and devise to your orator or to your orator’s wife what property or moneys he owned ; because of which your orator from time to time deferred the collection of his said debt. And further shows to your honor that on or about the 1st day of October, 1884, said Jacob Huester had in money $2,000, which, with some promissory notes which were comparatively, if not wholly, worthless, constituted the whole of the property of him, the said Jacob Huester, Sr., and that on or about that day he loaned the whole of said sum of money to one George Jockers, who there and then executed and delivered to said-Jacob Huester, Sr., his promissory note or notes therefor, payable to the order of said Jacob Huester. And your orator further states that within a short time prior thereto, said Jacob Huester was induced to make, and did make, publish and declare his last will and testament, by the terms of which he, George Jockers, was made principal legatee, and named executor thereof; and after the making of said note by George Jockers, was also induced to, and did enter into a contract to pay said George Jockers two thousand dollars ($2,000), being all the property he owned, in. consideration of which he, Jockers; agreed to house, clothe and feed him, or him and his son, Jacob Huester, during the term of his natural life, one or the other of which propositions constituted the consideration for said money, but which one of the propositions was or is the true one is unknown to your orator, because said contract or agreement was, by said parties, kept secret from your orator until after the death of said Jacob Huester, Sr., and since his death George Jockers has given it out both ways.
    Tour orator shows to your honor that George Jockers now says that said contract or agreement was made in January., A. D. 1885, and he shows to you that said Jacob Huester, Sr., died March 3, 1885, and that said Jacob Huester, Sr., prior to his death, delivered to George Jockers said promissory note or notes so made and delivered for said two thousand dollars ($2,000), and he, Jockers, accepted the same, as it is said, in full satisfaction and payment of the amount so agreed to be paid by Jacob Huester, Sr., to George Jockers under said contract and agreement; by means of which contract and payment said Jacob Huester, Sr., became and was insolvent and unable to pay the whole or any part of the debt due your orator during his life; and your orator shows unto your honor that after the death of said Jacob Huester, Sr., to wit, on the 20tli day of April, A. D. 1885, the last will and testament of Jacob Huester, Sr., was presented to the said County Court of Jersey county, and by said court admitted to probate, and letters testamentary were then and there, by said court, issued to said George Jockers, who, having first duly qualified according to law, entered upon the discharge of his duties, and was, and still is, executor of the last will and testament of said Jacob Huester, Sr.; and thereafter such proceedings were had in said County Court, settling said estate of said Jacob Huester, Sr., deceased, that your orator presented his said promissory note thereto to be probated and allowed against said estate, and on the 11th day of March, A. D. 1886, there was a judgment thereon by said County Court rendered in favor of your orator, and against said estate, for the sum of eleven hundred and thirty-three dollars ($1,133), which judgment now still remains in full force and effect, unreserved and not appealed from, which is due and wholly unpaid.
    That said George Jockers, as such executor, has filed in said County Court his inventory of the goods, chattels and effects of said estate, and that it is apparent therefrom, and your orator charges the fact to be, that said estate is wholly insolvent and unable to pay any part of your orator’s said judgment.
    And now your orator shows unto your honor that said contract, so entered into by said Jacob Huester, Sr., and George Jockers, was as to your orator fraudulent and void in this, that thereby said Jacob Huester, Sr., was made insolvent, and unable to pay the just and lawful demands then due from him to your orator, and also in this, that said contract was made and entered into with intent to hinder and delay the creditors of him, Jacob Huester, Sr., including your orator, in the collection of their debts from him.
    Inasmuch therefore as your orator is without remedy except in a court of equity, he makes said George Jockers, as executor as aforesaid, as well as in person, party defendant to the above entitled cause, both in his said official capacity and in person, and prays that upon a hearing hereof, your honor will find and determine the amount due upon said judgment of said County Court in favor of your orator, and against said estate, and that 'said contract between Jacob Huester, Sr., and George Jockers be declared fraudulent and void as to your orator, and that said George Jockers hold said sum of two thousand dollars ($2,000), or as much thereof as may be necessary to pay and discharge your orator’s said judgment, in trust for vour orator; and that he be compelled by the order of this court to pay the same to your orator within a time to be fixed by the court, and for all such relief as to equity may appertain, and the nature of the case may require, and as in duty bound.
    Michael Hartihg.
    Messrs. J. S. Carr and A. A. Goodrich, for appellant.
    A debtor can not, as against his creditors, transfer all his property to another to secure his future support, and such a conveyance is “fraudulent in law” as to creditors, although it may be good and valid as between the parties thereto. Annis v. Bonar, 86 Ill. 128; Moore, Adm’r, v. Wood, 100 Ill. 451; see 2d Resolution in Twyne’s case, 3d Coke’s Rep. p. 80; 1 Smith’s Leading Cases, 33.
    When the question is, “Was there a trust created by the contract for the benefit of the grantor, and did that contract result in hindering and delaying creditors?” and those facts are in any way admitted, the fraud is an inference of the law which the court is bound to pronounce, and it is not important what motives may lnve animated the parties. Moore, Adm’r, v. Wood, 100 Ill. 455; Phelps v. Curts, 80 Ill. 112; Emerson v. Bemis, 69 Ill. 541.
    And these rules apply to personal property or moneys with the same force as to the fraudulent conveyance of lands. See Twyne’s case cited above. Moore, Adm’r, v. Wood, 100 Ill. 454.
    It is a well settled rule that in cases of fraud, chancery always has jurisdiction, though courts of law may exercise it concurrently in all cases in which their powers are sufficient for the relief sought. Truett v. Wainwright, 4 Gilm. 418; Kennedy v. Northup, 15 Ill. 148; Babcock v. McCamant, 53 Ill. 215.
    Messrs. Wise & Davis, for appellees.
    This suit can not be maintained, because there is a full and adequate remedy at law. R. S. Chap. 3, Sec. 81, title, Administration; Wade v. Pritchard, 69 Ill. 280; People v. Abbott, 105 Ill. 588; Hales v. Holland, 92 Ill. 491; Long v. Barker, 85 Ill. 433; Brown, Adm’r, v. Wabash, 96 Ill. 297.
    There being a statutory remedy it must be pursued. People v. Biggins, 96 Ill. 481; Freeland v. Dazey, 25 Ill. 266; Hales v. Holland, 92 Ill. 497; Blanchard v. Williamson, 70 Ill. 647.
    After the death of the debtor the Probate Court had jurisdiction of his estate, with full power to settle all questions, legal or equitable, arising out of same; and a court of chancery will not take jurisdiction of the settlement of an estate, but if it does it will settle the entire estate. Freeland v. Dazey, 25 Ill. 266; Hales v. Holland, 92 Ill. 494; Long v. Barker, 85 Ill. 433; Brown, Adm’r, v. Wabash, 98 Ill. 297.
    Fraud must be alleged and proved, and in order to set aside a contract as fraudulent, it must appear both .grantor and grantee intended to commit the fraud against the creditors of the vendor or grantor. Schroeder v. Walsh, 120 Ill. 412; Meyers v. Kinzie, 26 Ill. 36.
    There is no allegation in the bill that Jockers knew the financial condition of Huester when he made the contract, knew that he was indebted and insolvent, such an allegation is necessary. Hatch v. Jordon, 74 Ill. 414; Champion v.. Cotter, 17 Ves. 263; Ewing v. Cantwell, Meigs, (Tenn). 364; Welsh v. Hildridth, 33 Vt. 457.
   Congee, J.

To the foregoing bill a general demurrer was sustained by the court below and the bill was dismissed.

It is insisted by appellee that this action of the Circuit Court was justified upon three grounds.

First. Appellant had an adequate remedy at law, and we are referred to See. 81, Chap. 3, Revised Statutes, and decisions thereon. That section provides that any executor or administrator or other person interested in an estate may, upon making the proper affidavit, have brought before the County Court any one supposed" to have assets of the estate,” when the question may be examined by the coult, and such order may be made as the case may require.

But this section provides for a proceeding to gather together the assets of the estate for its benefit, and to compel every one to account to the estate for what may belong to it, although in the hands of strangers. But the bill in this case sets out an arrangement by which the estate of Huester and his executors are bound as much as Huester would be if living. The contract between Huester and Jockers, as between themselves, their heirs or legal representatives, was binding and could not be avoided.

It is only the creditors of Huester that are defrauded, and they alone can complain; hence we think this objection to the bill is not tenable.

Second. That the contract was fully executed between deceased and Jockers, and therefore could not be set aside. No authority is given to sustain this proposition, and we presume none can be found.

When a debtor makes a contract which the law deems fraudulent, and whereby his creditors are defrauded of their rights, we know of no principal of law or equity which would prevent a court, of equity from annulling such fraudulent contract, and restoring the creditors to their legal rights, because the fraud has been consummated.

We think there was no adequate remedy in the County Court. Appellant’s claim had been allowed in that court against the estate, but it had no assets to pay the claim with, nor could the representatives of the estate ask that a voluntary conveyance, made by the deceased, be set aside. That could only be done by a creditor and by a creditors’ bill, by which the equitable powers of a court of chancery are called into action; hence we think the third objection to the bili is not well founded.

It is next insisted by appellee that “it must be alleged and proved that the grantor and grantee entered into the fraud; in other words, that the grantee knew the condition of grantor’s affairs, and knowingly, and thus fraudulently, made the contract.”

The fraud charged in the bill is a conclusion of law upon the facts stated, and it is not material what the intentions of the parties to the transaction were.

The contract, as set forth in the bill, was that the deceased transferred all his property to lookers, in consideration of being supported during his life, thereby rendering himself insolvent and unable to pay his debts, and this he can not legally do. As said in Annis v. Bonar, 86 Ill. 130: “It may be the motives of the parties were free from censure; hut the principle, it would seem, must, to every correct apprehension, bear its condemnation upon its statement. It is that a debtor may ti ansfer all his property to another, and thereby defeat his creditor in the collection of his debt, and yet enjoy the use of the property. * * * If the debtor may take a covenant for support and maintenance, he may prescribe, even to the minutest details, the kind and quality. The law allows no man, beyond the specific exemptions of the statute, by any form of contract or mode of disposing of property, whatever it may be, to secure the use of his property to himself, to the exclusion of his creditors.

“ The law will not speculate about what is actually passing in the donor’s mind, for the act need not be immoral or corrupt. The law does not concern itself about the private or secret motives which may influence the debtor. It does not deal,with his conscience. He may make a conveyance with the most upright intentions, really believing that he has a right to do so, and that it is his right and duty to do it, and yet, if the transfer is voluntary, and hinders, delays or defrauds creditors, it is fraudulent.” Bump on Fraudulent Conveyances, 266.

We think the demurrer to the bill was improperly sustained, and hence the decree of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


text:
    C. E. Henderson, Receiver of the I. B. & W. Railway, v. George W. Coons, Administrator, etc.

      Railroads—Personal Injuries—Improperly Placed Cattle Guard— Assumption of Risk—Contributory Negligence—Damages.

    1. In an action brought to recover for the death of a railroad brake-
    man, alleged to have been caused by the improper placing of a cattle guard with reference to the head of a switch, it is held: That the switch
    was appropriately placed; that any danger that could arise therefrom was a risk assumed as an incident of the employment; and that deceased was guilty of contributory negligence in endeavoring to uncouple cars of a train while the same was in motion.
    2. A brakeman who has been running over a certain piece of road for about three weeks may be presumed to know the location of a cattle guard with reference to a switch, whether any switching has been done by him at such point or not.
    [Opinion filed February 21, 1889.]
    Appeal from the Circuit Court of McLean County; the Hon. Aleked Sample, Judge, presiding.
    Messrs. Frank T. Hamilton, James S. Ewing and C. W. Fairbanks, for appellant.
    Messrs. M. W. Packard and J. P. Bindley, for appellee.
   Wall, P. J.

The appellee, as administrator of Robert Irwin, deceased, recovered a judgment against the appellant for $2,250 for causing the death of said Irwin.

The deceased was employed as a brakeman on the railroad of appellant, and was killed while engaged in duties incid mt to that service.

The train (a freight) going west had occasion to take two loaded cars off the side track at Danvers. Between those cars and the end of the side track were two empty cars, and it was necessary to pull the four cars ont, push the loads on the main track, and the empties back on the side tracks.

In doing this, Irwin was to uncouple the loaded cars from the empties, and after the engine with the four cars had pulled onto the main track, he, being on top of the second or third car, gave the engineer the signal to stop, and getting down to the ground went in between the cars to uncouple.- The engine and cars again moved slowly forward (but whether on his signal is not very clear), and he not getting the pin out of the link (as is supposed), walked along until a cattle guard was reached. Just then Allen, another brakeman, who was attending the switch, told him to “look out for the cattle guard,” when he stepped into it, and -losing his balance, fell, and received injuries from which he soon died. The negligence alleged against the company is that this cattle guard was too near the head of the switch, making it dangerous to perform such work at that place.

The cattle guard was necessarily there, the place of its location being the western line of the corporation of Danvers. The grounds of the company extended eastward about eighty rods, and the side track was of nearly that length, running from near the east line of the premises to within about eighty feet of the cattle guard. We are unable to see any negligence on the part of the railroad company in thus locating the switch. There was nothing unusual about such an arrangement, the situation being considered, nor was it necessarily more dangerous than if the head of the switch and the cattle guard had been further apart. Hud the distance been greater, the cattle guard might not have been in the way on this occasion,'but it might on some other when a longer train required uncoupling at a point further west. In other words, it would be purely a matter of speculation to determine in advance the best relative distance, considering the points where such uncoupling or coupling would be made.

The law regards the direct, not the remote and contingent cause as the basis for liability. As Bacon puts it, “It were infinite for the law to consider the course of causes and their impulsions, one of another; therefore it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree.”

Now the immediate cause here was that the deceased did not use proper care for his own safety. He was doing a dangerous and unnecessary thing. He could have uncoupled while the cars were still, and could have, held the train until he gave the signal to proceed.

The ground was slippery from ice and sleet, and therefore it was especially dangerous to attempt to uncouple while in motion.

The evidence shows that he adopted the most dangerous method—and certainly it would need no proof to convince the mind that such an act must be hazardous in the extreme. The fact is not changed by showing that it is a frequent or even general practice. For the sake of saving a few seconds of time, a man should not so imperil his life.

But if it were conceded that the course adopted by deceased was regular and legitimate, still we think the extra danger from the location of the cattle guards on this particular occasion, was a hazard incident to the service which can furnish no ground of action.

It is to be - presumed that the deceased contracted with reference to it and assumed the risk. He had been running over the road three weeks or perhaps more, and while it is not shown that he had done any switching at this point, he must have known the cattle guard was there. ■ It was plainly visible, and the wing fences which came up to it on either side made the place the more noticeable.

• The fact was, no doubt, as he stated to the witness Frankeberger, he forgot the cattle guard, and while the casualty is a sad one, yet the facts do not establish negligence on the part of the railroad company.

The judgment will be reversed, and there being in our opinion no cause of action, the case will not be remanded.

Reversed.


author: Pleasants, J.

text:
    Dwight L. Wing v. Henry H. Beach.

      Negotiable Instruments-—Bills—Indorser's Liability—Notice of Dishonor— Waiver of—Extension of Time tvUhout Indorser's Consent— Eviden ce—Instruction s— Verdict.

    1. Where a bill is accepted, payable at a certain bank which is its holder, no formal demand for payment is necessary at maturity.
    2. In such a case a tender of collaterals given to secure a general indebtedness evidenced by several acceptances and renewals, of which that in question is one, need not be made.
    3. An indorsement on a negotiable instrument, seemingly amounting, (o an extension thereof, may be shown, in the light of other facts, to have an entirely different meaning.
    4. Upon a contention as to whether the indorser of a bill waived notice' of non-payment thereof, this court declines_to interfere with a special finding in the affirmative.
    [Opinion filed February 21, 1889.]
    In error to the Circuit Court of Montgomery County; the Hon. J. J. Phillips, Judge, presiding.
    Messrs. Connolly & Mather and Conklin & Grout, for plaintiff in error.
    There may be circumstances of a general nature, or special circumstances which excuse want of presentment, protest and notice, or show an original absence of right to require presentment, protest or notice. Dan. Neg. Inst., Chap. 31.
    But no such circumstances appear in this case, unless it be plaintiff’s attempt to prove a waiver, which will be considered hereafter.
    It is regarded as entering, as a condition, in the contract of the drawer and indorser of a bill, that he shall only be bound in the event that payment is duly demanded, and be notified if it is not made. And in default of notice of non-payment, the party entitled to notice is at once discharged, unless some excuse exists which exonerates the holder. Dan. Neg. Inst., Vol. 2, Secs. 970, 1170; Story on Bills, Sec. 377.
    Neglect to give notice to the drawer of a renewed bill not only discharges him from liability to pay that bill, but discharges him from liability to pay the prior bill, to satisfy which it was drawn; and this although it be expressly agreed that the talcing of such second bill shall not exonerate any of the parties to the first bill until actual payment. Dan. Neg. Inst., Vol. 2, Sec. 971.
    The presentment and demand must be made within reason alie hours, on the day of maturity. For the purpose of-fixing the liability of indorsers, the bill is payable on demand at any time during these hours. Id., Vol 1, Sec. 590; Id., Sec. 1077; Edwards on Bills, side page 450.
    The holder must distinctly show that notice was given on the proper day; it will not suffice to show that it was given on one of two days. Dan. Neg. Inst., Vol. 2, Secs. 1050, 1051.
    As to the proper time for the holder to give the indorser notice of non-payment, the settled rule seems to be that when the parties live in the same place, the notice may be given at any time during the day succeeding the day of dishonor. Where they live in different places, it must be deposited in the post-office on the day after dishonor, in time for the first mail that departs, during convenient business hours, for the place of resid nice of or business of the indorser. Id., Secs. 1037, 1042; Story on Bills, Secs. 382, 383.
    The indorser of a bill drawn without funds does not stand upon the same footing as the drawer, and although the drawer is not, he is entitled to insist on strict demand and notice. Dan. Neg. Inst., Vol. 2, Sec. 1083.
    A promise to pay, by an indorser, after dishonor of a bill, made in ignorance of the fact that due demand had not been made or due notice had not been given, is not a waiver. Id., Sec. 373.
    The promise to pay must be absolute, by the indorser, in order to operate as a waiver of notice of non-payment. Dan Neg. Inst., Vol. 2, Sec. 1163.

      The burden of proof is on the plaintiff to show, clearly and distinctly, the acknowledgment of liability, and promise to pay the bill. Id., Sec. 1162.
    Unless it appears that the new promise was made with a full knowledge of the facts out of which the discharge of the. drawer or indorser has arisen, such promise is no waiver. And the burden of making the proof is on the plaintiff. Walker v. Rogers, 40 Ill. 278; Morgan v. Peet, 32 Ill. 281; Trimble v. Thorne, 26 Johns. 154.
    When the holder of a bill has collaterals as further security for the bill, he can not make a lawful demand of payment at maturity, unless he actually has the collaterals in his possession at the maturity of the bill, ready to be surrendered. Ocean Nat. Bank v. Fant, 50 N. Y. 474.
    It is incumbent on a plaintiff who has received collateral for a note or bill, to produce the collateral or account 'for it, before he can recover against either maker or indorser. Stuart v. Bigler, 98 Pa. St. 80.
    Messrs. Brown, Wheeler & Brown, and R & B. A. McWilliams, for defendant in error.
    It is urged that it was incumbent on the holder of these bills to formally present them to the Wing Milling Company, the acceptor, at St. Louis, on the day they respectively matured, and demand payment thereof, and failing in this, the indorsers are discharged from liability. This position is not sound. The drawee having accepted the bills payable at the banking house of Beach, Davis & Co., in Litchfield, Ill., it was only necessary, under any circumstances, to present them there; but in this case, the bankers at whose banking house the same were payable, were the holders of the paper, by the special indorsement of D. L. Wing & Co., and no presentment or demand was necessary.
    “ If the bill be made payable at a banker’s, a presentment there will suffice. And if the bill be accepted payable at a banker’s, which banker happens to become the holder at its maturity, that fact alone amounts to presentment. Byles on Bills, see page 167; Parsons on Notes and Bills, Vol. 1, pages

      365, 371; Edwards on Bills and Notes, side page 497; Bank of U. S. v. Carmeal, 2 Peters, 543; Chicopee Bank v. Philadelphia Bank, 8 Wallace, 641.
    It may be stated in general terms that Wing was entitled to notice of the failure of the acceptor to pay, unless—
    1. Such notice was waived by the indorser, or
    2. The circumstances under which the bills were drawn and the relations of the parties to each other were such as to render notice of non-payment unnecessary.
    The declaration filed in this case, and upon which issue was formed, avers that D. L. Wing & Co. waived demand, protest and notice thereof.
    A waiver of notice of non-payment may be established, either by direct evidence, or it may be presumed from the acts or declarations of the party entitled to notice, or from the circumstances surrounding the case and the relations of the parties to each other.
    The evidence seems to abundantly establish the fact that, shortly after the maturity of the bills, D. L. Wing had one or more interviews with a representative of the firm of Beach, Davis & Co. on the subject of the non-payment of these drafts.
   Pleasants, J.

This was an action of assumpsit brought by defendants in error against Dwight L. Wing and Hamilton F. Downing, partners under the firm name of D. L. Wing & Co., as indorsers of six bills of exchange, differing only in date and amount, of the first of which the following is a copy:

Office of Wing Milling Company, §3,000. Litchfield, Ill., June 2, 1884.
Ten days after date pay to the order of D. L.Wing & Co., three thousand dollars, value received, and charge to account of Planet Mills.
To Wing Milling Company,
406 Chamber of Commerce, St. Louis, Mo.,:

On the face of each appeared the following acceptance:

“ Accepted, payable banking house of Beach, Davis & Co., Litchfield, Ill. D. L. Wing, Tr.” And on the hack the following indorsements:
“ Pay Beach, Davis & Co., or order. D. L. Wing & Co.”
Oct. 8, 1884. Credit by cash, by interest to Dec. 1, 1884, at rate by agreement of 8 per cent per annum, $111.99.”

Each of the others was accepted and indorsed in like manner, except that on the second one the amount of interest credited was $408.21, and on all the others the amount was credited generally and not as intefest.

Besides the common counts, the declaration contained special counts on the several bills and indorsements respectively, alike in form, m.utatis mutandis, and averring that the Wing Milling Company was incorporated under the laws of this State, doing a milling business and resident at Litchfield; that the “ Planet Mills ” was only the name under which the local business of said company was done at that place ; that said company and the Planet Mills were one and the same in all respects; that said D. L. Wing was president and treasurer of said company and also the active and only resident partner of said firm of D. L. Wing & Co. in said county and State; and that the defendants, both before and after said bills of exchange became due, waived demand, and protest and notice thereof.

As to the defendant Downing the summons was returned “ not found.” Wing pleaded the general issue, under which the trial was had, resulting in a verdict for plaintiffs for $38,-118.09. Of this amount they entered a remittitur of $500 and after a motion for a new trial overruled, judgment was entered against him for the remainder. He prosecutes this writ of error.

It appears that for some time before these bills were made the milling company transacted its financial business through the defendants in error, who were bankers at Litchfield. In September, 1883, it was owing them about $50,000. Upon their so insisting, D. L. Wing, as its president and on its behalf, agreed in writing to reduce the amount, give them the indorsement of D. L. Wing & Co., and put up $75,000 of its second mortgage bonds, secured on its property at Litchfield, as collateral security for its paper and renewals thereof which should be held by them, from time to time, all of which he did, and under this arrangement the business relations and transactions of the parties were continued. The regular course of this business was, when a bill became due to take it up with another for the same amount, at ten days, the interest being charged in current account of the company against current deposits. For that purpose, and to avoid delay in renewing, D. L. Wing & Co., by D. L. Wing, indorsed bills in blank, which he left with his brother, Carlos JEL Wing, the cashier and general manager of the company at Litchfield, to be by him filled up and exchanged for old ones as occasion required. Of such were those here in suit.

When the first of these, dated June 2, 1884-, became due, Mr. Van Deusen, the cashier of Beach, Davis & Co., declined to accept his offered renewal, and told him they could not do business in that way any longer. The others, of which the last was dated June 12th, successively matured in the course of ten days and were all unprovided for. There was no further offer of renewals.

At that time, in consequence of the reduction which was made in the amount of indebtedness, $23,000 of the collateral bonds had been surrendered. It is not claimed, however, that by the agreement of September, Beach, Davis & Co. were at all bound to accept renewals of these bills. From the evidence it would appear that in the meantime material changes in the conditions affecting the value of the securities had taken place, or were by them supposed to have taken place, and it is conceded they were free to refuse an extension of the credit if they saw fit to do so.

This action was commenced in November, 1886, and the defense set up was purely technical—that plaintiffs had not taken the formal steps required by law to fix the liability of defendant as an indorser.

First, that they did not make a sufficient demand of. payment upon the acceptor, nor show a lawful excuse for the failure to make it, or any waiver of it by the defendant.

There was no evidence of any formal demand upon either of them on the day it became due, except the first, as to which each of two witnesses, Mr. Van Deusen and David Davis, stated that when Carlos Wing came on that day to renew it, he, the witness, made the demand; and Wing contradicted the statements.

It is also contended that such demand, if made, was insufficient unless the collaterals were then produced or shown to be in possession of the bank, to be surrendered on payment of the bill, of which there was no proof.

But where, as here, a note or bill is made or accepted payable at a particular bank, and the banker is himself the holder at its maturity, we understand the law to be as stated in Bank of U. S. v. Carmeal, 2 Pet. 543, that “no formal demand of payment is necessary; it is sufficient if the note is at the bank and remains unpaid at the expiration of business hours.” The indorser as well as the maker or acceptor engages that payment shall be made at the place so named. In the absence of proof to the contrary, it will be presumed that the instrument was there, ready to be delivered upon payment; and if there be no funds left there for that purpose and the maker or acceptor does not there appear and pay it when due, these facts are sufficient proof of a demand and refusal. Byles on Bills, 167; 1 Parsons on Motes and Bills, 365, 371; Edwards on Bills and Notes, 497; Chicopee Bank v. Philadelphia Bank, 8 Wall. 641.

For the proposition that a demand without a tender of the collaterals would he insufficient, counsel cite The Ocean National Bank v. Fant, 50 N. Y. 474. That was a suit against the payee and indorser of a note reciting, on its face that the maker had given him certain bonds as collateral, with power to sell on default. When the notary presented it for payment the maker expressed his readiness and offered to pay it, on the surrender of the collaterals also. They were not produced, and for that reason only he refused to make the payment. The court held that the recital in the note implied an agreement to surrender the collaterals on payment, and that such payment and surrender should be simultaneous; that the maker’s right to them stood upon the same footing with his right to the note, and that he was not bound to pay, with either outstanding and unaccounted for—obviously for the reason that he would thereby, through the fault of the holder, be exposed to further liability or loss—and that this was not such a demand and refusal as was required to make the indorser liable.

The case at bar is radically different. Here the acceptor would have had no right to the collaterals or any of them upon payment of this bill. They were all deposited to secure every dollar of existing indebtedness, whether due or not. Plaintiffs held five other acceptances, then not due, amounting together to some $30,000. The surrender of these securities, or any of them, at that time, would have been a wrong instead of a duty to the indorsers, who might be compelled to pay the others or some of them, and would thereupon be entitled to share in the protection afforded by all of these collaterals, by subrogation. It should be presumed of them as of the bill, that they were in the possession of Beach, Davis & Co., ready to be surrendered to the rightful claimant on payment of the indebtedness to them in full.

Next, it is claimed that if a sufficient demand of payment was made and refused, the indorsers were discharged by the neglect of plaintiffs to give them timely and proper notice thereof. The declaration averred that this was waived by the defendants both before and alter maturity of the paper, either of which would suffice; such waiver might be either express, or implied from circumstances—as by payment in part or an absolute promise to pay, made with knowledge of all the material facts operating to discharge him as indorser. Walker v. Rogers, 40 Ill. 278; Givens v. Merchants’ National Bank, St. Louis, 85 Ill. 442.

The issue of fact made, then, was not upon the giving, but upon the alleged waiver of notice, and upon that issue there was such a conflict of evidence as to make the duty of the jury to decide it anything but agreeable.

Mr. Davis, the managing partner in the firm of Beach, Davis & Co., testified that, shortly after the first bill matured, in a conversation with Garlos Wing about what should be done with this paper, he (the witness) said he supposed they would have to protest it; that, on the following day or the day after that, Carlos came into the bank and told him that his brother, the defendant, said it was not necessary to do so, as it would be taken care of; that he was arranging for that purpose; that, within two weeks after the last one matured, he saw* the defendant, D. L. Wing, at the office of the milling company, in Litchfield, and told him they would like to have this paper paid or put in more satisfactory shape, and that he supposed they would have to protest it; that they would have done so before, but Carlos had told them that he (Dwight L. Wing) had instructed him to say to them it was unnecessary to do it and that it would be taken care of; that he thought he then asked the defendant specifically if that was correct, and he answered it was, and was positive that he said no protest was necessary on account of the indorsement, “ as they were arranging to take care of the paper”—“to take care of it satisfactorily;” that “they were preparing to take care of it through the Planet Mills Company.” The witness stated that upon Carlos’ report of what defendant had said about the protest, he arranged to see him in person, and got Carlos or somebody at the mill to let him know when he would come up; that the first time he heard of his being there he went to see him and had the conversation related; that he went for the purpose of getting an arrangement or understanding with him about this paper; that he called about five o’clock in the afternoon; that the conversation lasted about a half hour, and was carried on in an ordinary conversational tone; that Carlos was present part of the time, and some others, in and out, whom he did not remember. Mr. Van Deusen also testified to two conversations had with the defendant in the ban k—one after some and the other shortly after all of these bills had matured—with reference to them. In the first, he ((he witness) insisted that it “ought to be protested in order that notice should be sent to bind the indorsers,” but told him that Carlos had stated it was his (defendant’s) request that they should not protest it, and he (the defendant) repeated it. When it had all matured, he called defendant’s attention “ to that (fact), and also to the necessity of protesting it;” and states that defendant then said “ it was not necessary, and that the paper would be taken care of.” This was in the back room.

If these statements are true, it is clear that after the paper had all matured, with certain knowledge that he had received no timely notice of its dishonor and with information from the holders themselves that they had taken no steps to give it, the defendant did absolutely waive his right to it and promise to pay them.

He denied that he ever had any such conversation with Davis or Van Deusen, or authorized Carlos to tell them for him what they say he did. He stated that he was not in Litchfield at the time they mentioned. He was there on the 13th of June, which was two days before the first bill became due, and again on the night of the 16th; that he arrived from St. Louis between eight and nine o’clock; went from the train straight to the mill office, where he met certain parties named by appointment; transacted certain business stated; slept at the office and returned to St. Louis by the train that left Litchfield between five and six o’clock the next morning, without going to the bank or meeting Mr. Davis or Mr. Van Deusen; that he again left St. Louis on the 19th or 20th for New York and Massachusetts and returned on the 24th, passing through Litchfield without stopping, and went East again the same evening or the next day; and was not in Litchfield at any time afterward until December. The Wing Milling Company operated the mill there until June 19th, when it was . leased to Stonebraker, who took immediate possession. D. L. Wing & Co. had then suspended payment. The term was extended on the 24th, and the Planet Mill Company ran it from about the first of August. It was in connection with these transactions that the several trips mentioned were made, and they enable him to fix the dates given.

Carlos Wing also denied that he was ever authorized by the defendant to make or that he ever did make to Davis or Van Deusen the statement imputed to him in relation to the protest of these bills, and corroborated his brother as to the times when the latter was, and when he was not in Litchfield, from the middle of June to December, 1883. _ Other persons employed about the mill had no recollection of seeing him there for a considerable time after Stonebraker took possession.

Although both D. L. Wing and his brother testified with confidence that defendant was not there within two weeks or a considerably longer time after June 25th, when the last bill became due, they did not claim to be absolutely certain of it. Their statements were that he was not, “ to their recollection,” after a long time had intervened! Up to that time his visits were frequent, and it would be remarkable if, with the large interests he had had and the complicated business he had done there, all occasion for them should so suddenly and wholly cease. The capital stock of the Wing Milling Co. in June was $400,000, of which three-fifths were in the name of D. L. Wing, and the residue, excepting three shares of $1,000 each, was held by his partner and co-defendant, Downing. The bills in suit, amounting to $35,000, were all made and matured during that month, as if the company was still prosecuting a very active business. The failure and suspension must have occurred in the midst of large transactions pending and unfinished. One would have supposed that the necessary settlements and arrangements would require a continuance of his visits for a considerable time, and that he would be unable, so long afterward, to remember accurately, when he testified, their number, times or occasions. So, too, of the other witnesses.

Davis and Van Deusen did not pretend to fix the date of the alleged conversations, which was not material; but as to their substance, and the circumstances that anybody would bs likely to remember, were entirely positive and certain. They were experienced bank officers, and Van Deusen was also a notary public, used to handling commercial paper and informed as to the rights of parties thereto and the general rules and practice relating to demand, protest and notice of dishonor. They were personally interested in these bills as creditors to the full amount of them, and they are presumed to be men of fair intelligence and good character. Their testimony was positive in its nature, while that of the opposing witnesses was negative. Whether in view of all the circa instances it was easier to believe that Carlos Wing and the defendant made the statements attributed to them, at about the times charged, and had forgotten the facts, or Davis and Van Deusen imagined or deliberately concocted their stories, with all the particulars, out of nothing, and then committed wilful and corrupt perjury in swearing to them, or, if there was no room for the supposition of forgetfulness, which side committed perjury, were questions for the jury. They returned a special finding as to each of the bills, that D. L. Wing waived notice of its non-payment. We think that must be conclusive.

Again, it is said the indorsers wore discharged as to the drafts of June 2d and 3d, by an extension to the acceptor, without their consent, of the time of payment. This claim is based on the indorsements thereon of October 7th of credit as for interest to December 1, 1881. Such a memorandum or receipt is subject to explanation. Van Densen explained these. He made them without special authority or consultation. The money was the interest due in September on the collateral bonds. He says his idea at first was that it had been received and should be credited as interest, but, after writing these two receipts, he concluded that was a wrong idea, and so, without erasing what he had written, he credited the others, generally, as they appear. And clearly it was a wrong idea—inconsistent with the fact and the acts of the bank.

When the first bill matured, Beach, Davis & Co. positively refused to accept a renewal, and gave notice that they would not extend the credit any longer. So as to the others. There was no pretense of any subsequent agreement or understanding with the acceptor, drawer or indorsers to give any further time. These amounts credited as for interest to December 1st, were not in fact so applied. If for a moment it was so intended by Van Densen, it was under a mistake or misapprehension from which he recovered before the record he was making was completed, as is shown by the indorsements on the other bills.

For these reasons we hold that the modification of defendants’ instructions on that point was proper. Those given for plaintiffs to the effect that if notice of non-payment was waived proof of demand was unnecessary, stated the law of this case, in which it was conceded that the paper was accepted payable at the bank of the holders. The evidence admitted as to the insolvency of the milling company, so far as we can see, could do no harm; and the affidavits of the jurors were not competent to impeach their verdict.

Judgment affirmed.


text:
    Lake Erie & Western R. R. Co. v. James D. Pike, Administrator.

      Railroads—Personal Injury at Crossing—Contributory Negligence— Parent and Child—Evidence.

    1. In an action against a railroad company to recover damages for the death of a child, alleged to have been occasioned by the defective condition of a street crossing, this court holds that, notwithstanding such defects, the proximate cause of the death was the gross negligence of a person with whom the deceased was riding with his father’s consent.
    2. In an action of this character the negligence of the parent, or of those placed in charge of the child by the parent, may be shown in defense.
    [Opinion filed January 21, 1889.]
    Appeal from the Circuit Court of McLean County; the Hon. Alfred Sample, Judge, presiding..
    Messrs. A. E. DeMange and W. E. Hackedorn, for appellant.
    Where the action is not for the benefit of the person injured, but by the parent for his own benefit, as in this case, to recover for technical loss of service under the statute, the negligence of such parent is a good defense. Shearman and Red-field on Negligence, Sec. 71; City of Chicago v. Starr, 42 Ill. 174 ; Glassey v. Hustonville, etc., Co., 57 Pa. St. 172 ; Koons v. St. Louis, etc., R. Co., 65 Mo. 592; Pittsburg, etc., R. Co. v. Vining, 27 Ind. 513 ; Williams v. Texas, etc., R. Co., 60 Texas, 205; C. & N. W. R. R. Co. v. Schumlowski, 8 Ill. App. 613; Fitzgerald v. St. Paul, etc., R. R. Co., 29 Minn. 336.
    Contributory negligence on the part of the boy or of the person in charge of him, which would constitute a defense to an action brought in his name, will preclude a recovery by the father or the administrator, for the benefit of the next of kin. Shearman & Redfield on Negligence, Sec. 71; C. & N. W. R. R. Co. v. Schumlowski, 8 Ill. App. 613; Chicago, etc., R. R. Co. v. Harney, 38 Ind. 282 ; T. W. & W. R. R. Co. v. Grable, 88 Ill. 442 ; T. W. & W. R. R. Co. v. Miller, 76 Ill. 278.
    It is requisite to the liability of a railroad company that the person injured should not have been guilty of any want of ordinary care and prudence for his own safety which directly contributed to the injury; if the evidence shows such want of care, even though it also shows negligence of the railroad company, there is no cause of action unless the injury was wilfully committed. Ill. Cent. R. R. Co. v. Green, 81 Ill. 19 ; C., B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510 ; C. & N. W. R. R. Co. v. Sweney, 52 Ill. 331.
    Even though a crossing may be a dangerous one through the neglect of the railroad company (though it is the duty of the railroad company under the statute to keep its crossings in safe condition), yet, if a person is familiar with its condition, it is his duty to exercise care and caution in proportion to the magnitude of the danger, and if he fails to do so and is injured he can not recover. R. R. l. & St. L. R. R. v. Byam, Adm'r, 80 Ill. 528.
    Mr. James S. Ewing, for appellee.
    Railroad companies are bound, by law, to construct- and maintain crossings and approaches thereto over streets, so that at all times they shall be safe as to persons and property. 2 Starr & C. Ill. Stat., Vol. II, Sec. 71, Chap. 114; People cx rel. v. C. & A. R. R. Co., 67 Ill. 118; R. R. I. & St. L. R. R. Co. v. Hillmer, 72 Il. 235.
    The following cases are in point upon all questions arising in this case. City of Chicago v. Major, 18 Ill. 349; C. & A. R. R. Co. v. Shannon, 43 Ill. 338 ; C. & A. R. R. Co. v. Gregory, 58 Ill. 226 ; Chicago v. Hesing, 83 Ill. 204; Stafford et al. v. Rubens, 115 Ill. 196; Lander v. Weick, 75 Ill. 93.
    The verdict of a jury will not be set aside whenever there is a contrariety of evidence, and the facts and circumstances, by a fair and reasonable intendment, will authorize a verdict, notwithstanding it may appear to be against the strength and weight of the testimony. I. C. R. R. Co. v. Gillis, 68 Ill. 317; Shevalier et al. v. Seager, 121 Ill. 568.
    The question of negligence, both of the railroad company and of the other parties to this suit, was submitted to the jury under proper instructions as to the law, and they have found that the railroad company was guilty of gross negligence; that neither the driver, the deceased, nor the parents of the deceased were guilty of negligence. That verdict under the law is determined, and in Illinois is conclusive, and should be respected.
    The entire question of neghgence is for the jury. C. & A. R. R. Co. v. Pennell, 94 Ill. 445 ; Dublin, etc., Ry. Co. v. Statlery, H. L. Cas. 1175 ; Chicago v. Herz, 87 Ill. 542.
    The Supreme Court in the case of Shevalier et al. v. Seager et al., 121 Ill. 567, says:
    “In this state of the testimony, it was the peculiar province of the jury to determine which set of these witnesses was right, and which was wrong. This the jury did, and the conclusion reached by them has received the sanction and approval of the judge who presided over the trial, and in whose presence and hearing these witnesses gave their testimony. Notwithstanding this, we are asked to set aside the verdict of the jury, sanctioned as it is by the judge who heard the cause, and reverse the decree of the lower court, mainly on the ground that the verdict of the jury was not sustained by the weight of the evidence. That we have no right to do. This is abundantly settled by the authorities.”
   Conger, J.

This was a suit brought by appellee, father and administrator of the estate of William D. Pike, deceased, to recover damages for his death, caused, as it is claimed, by the negligence of appellant.

Deceased was nine years old, and a boy of ordinary intelligence. He was permitted by his father to ride for pastime upon a coal and ice wagon driven by one George Washburn, whom the father had known about three months.

At the point where Mirket street crossed appellant’s railway, the latter had in July, 1887, constructed a crossing, in which wagons and teams had worn chuckholes, which had been filled up in February, 1888, and two or three times after June, 1888, and prior to the accident by which the boy lost his life.

On July 21, 1888, deceased rode with Washburn out to an ice house three-fourths of a mile west of the Market street crossing, where the wagon was loaded with two tons of ice. On starting back, Washburn placed deceased on the foot board of the wagon, which was a board eight to ten inches wide attached to the front end of the wagon bed, midway between its top and bottom, with its outer edge three and a half inches higher than its inner edge, and about five feet from the ground. Washburn sat on top of the bed on the left side with his feet on this foot board, while deceased sat on the foot board at the right hand side of the wagon immediately behind the right mule, and in front of the fore wheel of the wagon, with nothing for his feet to rest upon, and enabled to keep his seat only by grasping the edge of the seat upon which he was sitting, with his hands. In this position they passed upon the crossing. The front wheels dropping off the plank at the side of the rails into the chuckhole, made the wagon wrench, and caused the boy to fall off immediately in front of the wheel, which instantly passed over and killed him. Washburn, standing on the other end of the foot board, as the boy fell off, made a grab for him, but could not reach him.

There is some conflict in the evidence as to the size of tliese chuckholes, but Washburn describes them as follows :

“ They were about six inches deep, and three or four feet across them; the crossing planks on the railroad wore about the length of one plank of twelve feet; the chuckholes extended very nearly the whole length of these planks. I knew the position of these chuckholes pretty thoroughly; I could not drive across without striking the chuckholes; 1 told the boy to hold on; he took hold on each side of him on the front edge of the foot board; I didn’t take hold of him nor put my foot in front of him. nor do anything to hold him on.”

In actions of this character, brought for the benefit of the parent, the negligence of the parent or of those placed in charge of the child by the parent, is proper to show in defense. Shearman & Redfield on Neg., Sec. 71; T. W. & W. R. R. Co., v. Miller, 76 Ill. 278; T. W. & W. R. R. Co. v. Grable, 88 Ill. 441.

While appellant was guilty of negligence in suffering the crossing to be in the condition it was, still we think the negligence of Washburn so gross as to preclude a recovery. He well knew the condition of the crossing and the effect it would have upon his heavily loaded wagon, as, passing obliquely over this crossing, one of the front wheels would first sink into the hole, thereby giving the wagon such a lurch as to render it almost impossible for the little boy. to hang to his dangerous seat, perilous enough even upon a level road. Had he placed him in the middle of the seat, the child might have had some chance for his life by falling between the wheels; but placed as he was, the danger of being thrown off was great, with almost absolute certainty, if he fell, of the wheel instantly passing over him.

Much as we may sympathize with appellee in his great loss, we feel compelled to hold that the verdict is so plainly against the evidence that it can not be sustained.

The judgment of the Circuit Court will be reversed. .

Judgment reversed.

Certificate of facts as found Toy the court:

The court finds that appellant was guilty of negligence in allowing its crossing at Market street in Bloomington to be out of repair; that there were cliuckholes about six inches deep and from three to four feet wide at the edge of the planks of the crossing outside of the rails of the railway.

The court further finds that deceased was a boy nine years old, and was permitted by his father, the appellee, to ride for pastime upon a coal and ice wagon driven by one George Washburn, whom the father had known but about three months; that on the 21st of July, 1888, deceased was riding on Washburn’s wagon loaded with two tons of ice; that Wash-burn was sitting on the top of the ice at the left side of the front of the wagon with his feet on the foot board, which was a board eight or ten inches wide, attached to the front end of the wagon bed, and about five feet from the ground. Deceased sat on the right end of this foot board immediately behind the right mule of the team, and in front of the wheel of the wagon, with no support for his feet, and enabled to keep his seat only by grasping the edge of his seat with his hands. In this position they passed upon the crossing at said Market street, which crossing was oblique and not at right angles to the railroad. The front wheel dropping off the plank into the chuckhole, gave the wagon a wrench, and caused deceased to fall, off immediately in front of the wagon wheel, which instantly passed over him and caused his death.

The court finds that Washburn was in charge of deceased, and that he was guilty of gross negligence in placing him or permitting him to ride upon the wagon as above set forth, and that the negligence of Washburn is legally imputable to appellee and prevents a recovery against appellant.


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    Andrew V. Smith v. Albertus R. Belt.

      Contract for Support of Parent—Evidence—Admissions and Declarations—-New Trial—Newly Discovered Evidence.

    1. In an action to recover upon an alleged express agreement on the part of a son to pay for the support of his mother, this court declines to interfere with the verdict for the plaintiff.
    2. The court below properly denied a motion for a new trial on the ground of newly discovered evidence, such evidence being an alleged admission by the opposite party made to the attorney of the appellant before the trial.
    [Opinion filed May 21, 1889.]
    Appeal from the Circuit Court of Sangamon County; the Hon. J. A. Creighton, Judge, presiding.
    Messrs. McGuire & Colby and T. S. Casey, for appellants.
    Messrs. Patton, Hamilton & Shutt, for appellee.
   Pleasants, J.

Assumpsit, brought by appellee on an alleged agreement by appellant to pay for keeping his mother. She was over eighty years of age. Appellant was abundantly able and willing to provide for her, but his wife objected to her remaining in the family. Appellee was her son-in-law, whose wife, her daughter, had been dead for some years, leaving children, in whom the old lady felt the natural interest of a grandmother; but he was too poor to keep her as comfortably as might be desired. He did keep her, however, from the spring of 1884 until the fall of 1887, and the evidence is that he kept her kindly and as well as he was able. She was in receipt of a pension, at first of $24, and afterward of $36 per quarter, a part of which, doubtless, went to the use of appellee’s family. On the evidence, as to the reasonab’e value of what he did and provided for her, the jury allowed him $200, from which it would seem that they applied on account of his claim, all that he probably received out of her pension, and returned a verdict for the excess only.

A previous express agreement by appellant to pay him, without any specification of price, was testified to by appellee and his daughter, but denied by appellant, though in his cross-examination he admitted pretty nearly as much. No other direct evidence on that subject was offered, but circumstances were proved as tending to show that she lived with appellee as a member of his family. To that end it was also proposed to prove what appellee’s wife said to her “about her living with him and taking care of the childrenbut as the proposition did not connect him with the supposed conversation, and whatever was said must have been years before the keeping in question or the alleged promise to pay for it, the evidence so offered was properly excluded.'

It is also complained that the court sustained an objection to the question put to the old lady, “ whether or not all the money she drew as pension money, while she was there, was expended for Belt’s family, except what she brought away.” In form it was rather too suggestive of the answer desired, and it called for a conclusion or opinion, concerning matter about which it doesn’t appear that the witness had the means of forming one, instead of the facts. And what, specifically, was done with her pension money, was otherwise proved, probably as far as was possible, without objection. No harm, therefore, was done by the exclusion of this question, even if it had been proper. But it was not proper, for the reasons indicated.

Evidence was also introduced, of admissions and declarations by appellee, said to be inconsistent with his claim of an express agreement by appellant to pay him. And these he denied or explained. Clearly this was a question for the jury, and we see no sufficient reason for discrediting their finding that there was such an agreement.

A motion was made for a new trial, on the ground of newly discovered evidence, consisting of a statement said to have been made by the plaintiff before the trial to one of the attorneys for the defendant, which for that reason could hardly be called newly discovered matter. Besides, so far as it was in the nature of impeaching evidence, affecting the credibility of plaintiff as a witness, it could not be conclusive, and so far as it would tend to prove the fact in issue, it was cumulative, being an admission, by inference or implication, that he had no legal claim against appellant. The motion on this ground was therefore properly denied.

Judgment affirmed.


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    Lafayette Lamb v. Eliza J. Johnston, Adm’x.

      Limitations—Note—Payment—Evidence—Instructions—Error without Injury.

    1. In an action upon a promissory note, the contention being as to whether a sum indorsed thereon was a voluntary payment after the running of the statute of limitations, this court declines to interfere with a verdict for the plaintiff.
    2. Where the evidence is closely conflicting, and that for the plaintiff considered alone is sufficient to sustain the verdict for him, this court will not interfere.
    3. An error without injury to the appellant is not sufficient ground for reversal.
    [Opinion filed February 21, 1889.]
    Appeal from the Circuit Court of Morgan County; the Hon. Cyrus P. Epler, Judge, presiding.
    Messrs. M. T. Layman and F. D. McAvoy, for appellants.
    Mr. John A. Bellatti, for appellee.
   Wall, P. J.

This was a suit upon a promissory note signed by appellant, payable to Joseph P. Johnston, now deceased.

The defendant pleaded the statute of limitations, ten years, to which plaintiff replied a payment of $6.17 after the statute had run. The issue was upon this replication, and the verdict was for plaintiff.

The evidence offered by plaintiff consisted mainly of a conversation between defendant and plaintiff’s attorney, who held this and two other notes against defendant for collection. The defendant called at the office of the attorney after suit (the present suit) had been brought u pon the three notes, and asked to see them. They were shown him, and he claimed that he had paid one of them, which, it was agreed, should be dropped from the case. He paid another to the attorney, but as to this one, after examining it and the indorsement of credits on it, said he had not money enough to pay it, and that he wanted to see the administratrix in regard to it. He did not deny making the payment of $6.17, and did not deny knowing anything about the note. The defendant testified that this note was shown him with the others, and that he told the attorney he knew nothing about the note; did not tell him' he wanted to see Mrs. Johnston about it. He says, in one place, that he was shown the note with these credits (there were two, one at a much earlier date) upon it, and, in another place, he says he did not see the credit and did not know it was there. He admitted giving a check for $150 on the date of this credit, which overpaid a note he then took up, and the surplus of which covered this payment and another item, as the plaintiff claimed. He did not produce the note so paid, and professed to be unable to give the sum due thereon, or to know, with any certainty, what was done with the surplus. Heading the examination of the defendant in the record, we can readily believe that the jury, who saw and heard the witness, had much better means than we have of judging as to the relative credit to be given him and the opposing witness. The two were in conflict, and the evidence could hardly be reconciled.

The jury were compelled to credit one and discredit the other. If, then, the evidence for the plaintiff, when' considered alone, was sufficient, this court would not interfere with the judgment upon the ground that the verdict is not supported by the evidence. It is objected that one of the witnesses for plaintiff was permitted to state that she knew the note was unpaid. This seems to have been stated rather incidentally, and it was apparent it was the mere opinion of the witness. Though it should have been excluded because not relevant, yet, as the payment of the note was not affirmed by the defendant—as he did not deny it was unpaid—we can not see in what way this could have injuriously affected the defendant.

It is urged the court erred in refusing to give, and in modifying certain instructions asked by defendant, but we find the court gave all that defendant bad any occasion for.

The jury were clearly informed that the burden of proof was on the plaintiff to show that the payment of $6.17 was made by the defendant, he then actually intending to do so; that the indorsement on the note was not to be considered for that purpose, and that if the plaintiff failed to make such proof, or if the evidence was equally balanced, the jury should find for the defendant. We are satisfied there was no error in regard to instructions for plaintiff or defendant, and that the jury were not misled by the ruling of the court in that, regard. It was a pure question of fact, and the jury having settled the conflict, and the trial court, by overruling the motion for a new trial, having approved of the verdict, we find nothing to require us to set aside the judgment. We must, therefore, affirm the judgment.

Judgment affirmed.


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    John McNulta, Receiver, v. John Ensch.

      Bailroads—Personal Injuries—Failure to Make Sufficient Stop to Discharge Passengers—Contributory Negligence—Conflict of Evidence— Instructions.

      1. Where a train comes to a stop in about the usual time and at about the usual place, after the announcement of a station, a person on board is justified in presuming that it is for the discharge of passengers, and may recover damages for injuries received while attempting to alight.
    2. The fact that the train starts after a moment and stops a reasonable time a few yards further on, can not affect the right of recovery.
    3. The plea of not guilty on the part of the alleged receiver of a railroad company in an action by a passenger to recover for injuries received, renders it unnecessary to prove his official character.
    [Opinion filed February 21, 1889.]
    In error to the Circuit Court of Sangamon County; the Hon. J. A. Creighton, Judge, presiding.
    Messrs. G. B. Burnett and Isham, Lincoln & Beale, for plaintiff in error.
    Mr. Charles A. Keyes, for appellee.
   Pleasants, J.

On the night of January 14, 1888, defendant in error was a passenger on the lightning express train of the Wabash railway from Springfield to Starnes, distant three miles east, and in getting off was, by its sudden motion, thrown between the cars and the station platform, and seriously injured; for which this action was brought.

The negligence alleged and relied on was in failing “to stop the train * * * a sufficient length of time to allow the plaintiff safely to get off.” Plea, not guilty; verdict and judgment for plaintiff for 82,500 damages.

Starnes was a small settlement consisting of ft few miners’ houses about a coal shaft. The lightning express was not scheduled or advertised to stop at that station, but as there was a crossing of the Illinois Central railroad about five hundred feet east of the platform there, that train, like all others going that way, in making the stop required for the crossing would naturally make it at or near that platform. And hence the residents, returning from Springfield, and others coming from the west to Starnes, availed .themselves of that train as freely as of those scheduled to stop there, paying fare to the conductor.

Ensch was a miner at the Starnes shaft, and January 14th was pay-day. As usual at such times, he, with others, had gone to the city in the afternoon to got his pay, and it was on his return that he received the injury in question. There were twenty or more other passengers for Starnes on that train, including some women and children. Ensch testified that, knowing the stop would not be long, and that so large a number were to be there discharged, he had taken his place on the rear platform of the second car, to be ahead of the crowd and get off as soon as he properly might when it should stop; that it did stop at the platform; that he thereupon first placed upon the platform a gallon jug which he had carried, and was in the act of stepping off himself when the train started up with a jerk, and so, without any fault or carelessness on his part, threw and injured him as stated.

On behalf of defendant it was claimed" that the train had only slacked up when plaintiff attempted to get off; that it continued to move on some fifty or sixty yards further east; that the jerk spoken of was due to the taking off of the air-brakes, and that his injury is to be charged to his own recklessness in making the attempt while the train was in motion.

It appears that at the point referred to as further east, it did stop, and there the other passengers for Starnes were all discharged. It was not the place, however, at which that train usually stopped, nor was it so convenient or safe a place for the discharge of passengers as the platform.

Whether it did or did not stop at the place where plaintiff attempted to get off, was the only controverted question of fact, and upon its determination the case seems to have depended. Upon that question the testimony was conflicting, each side introducing quite enough, in the absence of any evi dence to the contrary, to establish its own contention. For the defendant the four train hands—conductor, engineer, fireman and brakeman—-testified that it did not; but some of them spoke rather from their knowledge of the usual course of that train than from any particular recollection of the circumstances on the occasion in question, to which their attention was not called until some time afterward. Three passengers for Starnes also testified to the same effect; but their observation was made from within the coach, and it was at n;ght. Three others said they did not notice any such stop, hut were not positive and did not claim to have given the matter special attention at the time. Another thought it did not really come to a stand-still, but stopped long enough to have made him attempt to get off if he had been on the steps of the coach.

On the other hand, seven passengers for Starnes, including the plaintiff, testified that it there came to a full stop, though but for a moment. The position of plaintiff was the most favorable for accurate observation, and he was very positive, as were also three of the others.

To decide upon the comparative weight of this conflicting testimony was clearly within the exclusive province of the jury, who saw and heard the witnesses, both as to the direct fact and as to the corroborative circumstances, if any, on the one side and the other. In such a case, our own opinion as to the preponderance, whatever it might be, would be immaterial.

It is further claimed by appellant that the declaration is to be treated as alleging that the train did not stop at the place where the defendant undertook to discharge the passengers for Starnes a sufficient length of time to allow appellee, in the exercise of proper care and diligence, to get off safely ; and inasmuch as the evidence showed abundantly and without contradiction that it did stop long enough for that purpose at another place, a little further east, where all the passengers for Starnes excepting appellee were in fact discharged, the declaration was not only wholly unproved but clearly disproved, and therefore the verdict should have been set aside, notwithstanding any proof that it made a momentary stop where he attempted to get off. One of the instructions given for defendant seems to convey that idea, which the jury must have either misunderstood or disregarded. In application to this case we think it was misleading and erroneous, however sound as an abstract or general proposition. Just where defendant “undertook” to discharge the passengers they were not expressly informed in advance, nor could they otherwise know except from the actual conduct of the train. The conductor or brakeman announced the station, in the usual manner, just before it was reached, and if, following that announcement, and in about the usual time afterward, it actually stopped at the station platform, passengers would be justified in presuming it was for the purpose of discharging them there and in proceeding to get off; and if, in the act of getting off while it was so stopped, and with dne promptness and care, the plaintiff was thrown off and injured by the starting up of the train, that presumption would be conclusive upon the defendant. He could not avoid liability for such injury by stopping the train again a few rods further on, and there giving ample time for discharging the passengers. The jury must have found that it did so stop, and in that view the instruction was inapplicable, or so clearly improper, that in disregarding it no legal wrong was done to defendant.

It is also claimed that there was no evidence tending to show that defendant was the receiver of the railroad company; and that therefore the verdict, as against him, was wholly unsupported. .

The record furnishes no intimation that this point was made in the court below. This was a suit against Mc-Hulta- as the “superior,” for injuries alleged to have been caused by the negligence of his servants, and the defense proceeded upon the plea .of not guilty, and on the sole ground that they were not in fact guilty of the alleged negligence. We think this should be now held to have been a concession of their relation to the defendant, as averred in the declaration—which was a fact so publicly and generally known as to bring it almost, if not. quite, within the range of judicial notice.

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

Judgment affirmed.


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    Christian Linck v. City of Litchfield.

      Costs—Interest—Sec. 3, Chap. 71, S. S.

    A judgment for costs bears interest, being within Sec. 3, Chap. 74, R. S.

      [Opinion filed January 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 appellant.
    Messrs. Joseph E. Paden and George L. Zink, for appellee.
   Conger, J.

In a former suit between these parties, appellant had recovered against appellee, a judgment in this court for costs, amounting to sixty-four dollars and fifty cents.

This action was brought to recover such costs and interest thereon. The Circuit Court refused to allow appellant any interest on his judgment for costs, and hence he appeals.

The question whether a judgment for costs bears interest, has not been passed upon by the courts of this State, so far as we are advised. Sec. 3, Chap. 74, It. S., provides, “Judgments recovered before any court or magistrate, shall draw interest at the rate of six per centum per annum, from the date of the same until satisfied.”

If the adjudication of a court in awarding costs is a judgment within the meaning of the foregoing section, there would seem to be no room to question the propriety of allowing interest upon costs so recovered and allowed.

Sec. 7, Chap. 33, E. S., provides: “If any person shall sue in any court in this State, in any action * * * and shall

recover any debt or damage in such action, then the plaintiff or demandant shall have judgment to recover costs against defendant, to be taxed, and the same shall be recovered, together with the debt or damages by execution, except in the cases hereinafter mentioned.”

Sec. 8 provides: “ If any person shall sue in any court of record of this State, in any action wherein the plaintiff or demandant might have costs in case judgment be given for him, and he be nonpros., or suffer a discontinuance, * * * th ni the defendant shall have judgment to recover his costs against the plaintiff * * * or defendant, to be taxed, and the same shall be recovered by like process,” etc.

It is true the clerk is the officer authorized by law to tax the costs and determine the items and their amount, but when this is done, such taxation relates back to, and is suppoited and authorized alone by the decision of the court in rendering a judgment for the costs, and is as much the judgment of the court as the damages awarded. We are inclined to think, therefore, that a judgment for costs is within the language and meaning of Sec. 3 of the chapter on interest, and that the Circuit Court erred in hojdiug differently. The judgment will be reversed and the cause remanded.

Reversed and remanded.