author: Mr. Justice Magruder

text:
    Maurice F. Tissier v. Philip Rhein.

      Filed at Mt.Vernon

      October 31, 1889.

    1. Justices of the peace—uniformity—constitutional requirement— jurisdiction territorially. By the act of 1872, it was provided, that in counties under township organization there shall be elected in each town two justices of the peace, and one other for every 1000 inhabitants, of such town above 2000, provided no more than five should be elected in any town. In 1877 another, act was passed, entitled “An act to authorize county boards, in counties under township organization, to. organize certain territory situated therein, as a town,” the sixth section of which provides, that in such cities and towns where the territory of the city and town is the same, the city council may, from time to time, regulate the number of the justices to be elected within such city and town: Held, that section 6 of the act of 1877, in prescribing a different rule for determining the number of justices to be elected in a certain class of towns, from that prescribed in the act of 1872, in respect to towns generally, is unconstitutional and void, being repugnant to section 29, article 6, of the constitution, which requires all laws relating to courts to be general, and uniform in their operation.
    2. A justice of the peace, though elected by the people of his town, has a jurisdiction which is co-extensive with the limits of the county in which such town is located. His process issues to any part of the county, and suits maybe brought before him by persons residing anywhere in the county.
    This is an original petition for mandamus, filed in this Court by Maurice F. Tissier against Philip Bhein, the County Clerk of St. Clair County, to compel the latter to issue to the petitioner a certificate of election, certifying to the election of petitioner as a justice of the peace in the town and city of East St. Louis in said county.
    The petition shows, that in 1883 St. Clair County adopted township organization and the township of East St. Louis was organized and elected town officers; that, in 1886, the city of East St. Louis adopted what is known as the City Election law, entitled “An Act to regulate the holding of Elections and declaring the result thereof in cities, villages and incorporated towns in this State,” Approved June 19, 1885, In force July 1,1885; that in 1888 the County Board of said County, upon request by resolution of the City council of East St. Louis, provided that the territory embraced in said city should be organized as a town, so that the limits of the town of East St. Louis are the same as the boundaries of the city of East St.Louis; that by ordinance of the city passed in 1888, the offices of City Clerk and town clerk were consolidated into the latter office, and those of city treasurer and township collector were consolidated into the office of city treasurer, and the office of highway commissioners was abolished; that in August, 1888, the citizens of East St. Louis adopted the general law for the organization of cities; that, at the town election in the town of East St. Louis held in 1885, five justices of the peace and five constables were elected for terms of four years each, expiring April 2, 1889; that, on March 20, 1889, the city council passed an ordinance that thereafter there should be elected in and for the town and city of East St. Louis two justices of the peace, one police magistrate and three constables, and no more; that an election was held in said city and town on April 2, 1889, for Mayor and other officers, the notice of election reciting that it was for “two justices of the Peace for the township" and other officers; that on the tickets were printed the words “For Justice of the peace,” “Two to he elected”; that, at the election of April 2, 1889, there were eleven candidates for justice of the peace, and petitioner received 356 votes, “being the fourth highest in the list of candidates for said office, as shown by the official returns;” that the population of said city and town in 1880 was about 10,000, and, in 1889, 13,561; that the Board of election commissioners and the Board of Canvassers of said election canvassed all the votes for Justice of the Peace and declared but two of the eleven candidates elected, they standing first and second on the list; that the returns showed the election of three others, including petitioner, if five were to be elected; that, by section 1 of “An Act to provide for the election and qualification of justices of the peace,” etc., Approved April 1,1872, In force Juíy 1,1872, there shall be elected, in counties under township organization, on 1st Tuesday in April, 1885, and every four years thereafter, two justices of the peace and two constables, and one justice of the peace and one constable for every 1000 inhabitants exceeding 2Ó00 inhabitants of such town, provided the number in no one town shall exceed five justices and five constables; that on April 5,1889, petitioner demanded a certificate of election from the city clerk,
      ex officio town clerk, of East St. Louis and the same was refused ; that on the same day he made a similar demand upon the county clerk of said county, tendering an official bond with responsible sureties and the oath of office duly signed and sworn to; that said clerk accepted and filed said oath and bond, but refused to grant the certificate of election, etc.
    The defendant, Ehein, filed a general demurrer to the petition.
    Mr. L. H. Hite, and Mr. James M. Dill, for the petitioner.
    Mr. M. W. Schaefer, Mr. F. G. Cockrell, and Mr. E. R. Davis, for the defendant.
   Mr. Justice Magruder

delivered the opinion of the Court:

The question involved in the present case is this: where a city and town occupy the same territorial limits, has the common council of such city the power to determine how many justices of the peace shall be elected in such city and town?

Section 1 of the general law of the State in regard to Justices of the Peace, being chapter 79 of the Eevised Statutes, provides that, in counties under township organization, there shall be elected in each town two justices of the peace, and one justice of the peace for every 1000 inhabitants exceeding 2000 inhabitants of such town, provided that no more than five justices of the peace shall be elected in any town. This law went into force on July 1, 1872.

Afterwards in 1877 the Legislature passed an Act, entitled “An Act to authorize county boards in counties under township organization to organize certain territory situated therein as a town,” approved May 23,1877, in force July 1,1877, the sixth section of which provides, that, in such cities and towns as are therein described, that is to say, where the territory within a city has been organized into a town and the city and town have the same territorial limits and boundaries, the city council may from time to time regulate the number of justices of the peace to be'elected within such city and town, but that the number elected shall not exceed the number allowed by law to other towns of like population. In pursuance of said section 6 of the Act of 1877 the common council of the city and town of East St. Louis passed the ordinance of March 20, 1889, providing for the election of two justices of the peace, and no more, in that town and city.

If the general law of the State is applicable to the town and city of East St. Louis, the petitioner was elected a justice of the peace, and is entitled to hold the office. But if section 6 of the Act of 1877 is valid, then the city council of East St.Louis had the right to limit the number of Justices in that city and town to two, and petitioner was not elected.

Section 29 of article 6 of the constitution provides as follows : “All judicial officers shall be commissioned by the Governor. All laws relating to courts shall be general and of uniform operation, ” etc. A justice of the peace is a judicial officer, and, by section 8 of chapter 79 of the Revised Statutes, the Legislature has required his commission to be issued by the Governor. A court has been defined to be that “body in the government to which the public administration of justice is delegated.” (1 Bouv. Law Die. 373.) The public administration of justice is delegated to justices of the peace. They are among the bodies, in whom the constitution vests the judicial powers of the State. (Cons. Art. 6, sec. 1). While engaged in the performance of their public duties as judicial officers, they are “courts” within the meaning of said section 29.

Laws, which fix the number of justices of the peace to be elected within a specified territory, are laws “relating to courts,” and must therefore be general and of uniform operation. The Act of 1877 provides, that, in a town which has been organized out of territory embraced within a city, the city council shall determine the number of justices to be elected therein, subject to certain limitations; while, in all other towns, in counties under township organization, the number of justices is fixed by law in proportion to the population of the town.

If there is one mode of determining the number of justices in one class of towms and a different mode in all other towns, the law upon the subject is not of uniform operation as to all the towns. It follows that section 6 of the Act of 1877 is unconstitutional as being special in its character. The last clause of that section provides that the number elected to the office of justice of the peace “shall not exceed the number allowed by law to other towns of like population.” Thus, by its own terms, the section refers to another law upon the subject of determining the number of justices, which is of a more general character than the Act of 1877.

The fact, that section 6 applies to that particular class of towns where the city and town have the same territorial boundaries, does not relieve it of the unconstitutional feature here noticed. A justice of the peace, though elected by the people of the town, has a jurisdiction which is co-extensive with the limits of the county, in which such town is located. His process issues to any part of the county, and suits may be brought before him by persons residing anywhere in the county. (People v. Meech, 101 Ill. 200). Therefore, no classification of towns can be made, which is based upon their relations to justices of the peace." The territorial jurisdiction of a justice is not circumscribed by the territorial limits of a town. We see no reason why the constitutional provision, which requires a law relating to such judicial officers to be general and of uniform operation, should be subject to any exception in favor of the class of towns mentioned in the Act of 1877.

In The People ex rel. v. Hazelwood, 116 Ill. 319, the part of the Act of 1877, which was chiefly under consideration, was so much of section 5 as provides, that “the city council in such city and town may by ordinance provide that the officers of treasurer and town collector shall be united in the same person. ” The validity of section 6 was not involved in that case. There, the power to consolidate certain town and city offices in towns of the class therein described was held to have been rightfully vested in the city council, but the power of the city council to regulate the number of justices to be elected in the town was not considered.

For the reasons thus stated, we think that the petition shows sufficient grounds for the issuance of the writ of mandamus. The demurrer is accordingly overruled, and the writ is awarded.

Mandamus awarded.


source: Caselaw Access Project

author: Mr. Justice Baker

license: Public Domain

text:
    The Chicago and Iowa Railroad Company v. Elliott Lane.

      Filed at Ottawa

      October 31, 1889.

    1. Costs—suing as a poor person—minors within the statute. Section 5, chapter 33, of the Revised Statutes, in relation to the prosecution of suits without costs, is broad enough in its terms to include all resident plaintiffs, whether they be adults or minors, who are poor persons, and are unable to prosecute their suits and pay costs and expenses.
    2. Section 5, chapter 33, of the Revised Statutes, and the proviso made in 1881 to section 18 of chapter 64, entitled “Guardian and Ward," are to be regarded as in pari materia, and a sensible and intelligent effect given to the provisions of each. The later statute is not to be so construed as to deprive an infant, who has no means, of the privilege of suing without costs. A motion for leave to prosecute as a poor person is addressed to the judicial discretion of the court.
    3. Bill oe exceptions—whether necessary—presumption i/n support of ruling below. Where the affidavits on which the trial court acts in allowing a minor bringing suit by his next friend to prosecute as a poor person, without costs, are not preserved in the record by bill of exceptions, it will be presumed that it was sufficiently shown that both the infant plaintiff and his next friend were poor persons, within the purview of the statute.
    4. Negligence—as a question of law or fact. In an action to recover for an injury alleged to have resulted from the negligence of the defendant, it is for the jury to determine, from all the facts and circumstances in proof, whether or not there was contributory negligence, and it is not the province of the court to tell them that certain facts constitute such negligence as precludes a recovery.
    5. It is only when the conclusion of negligence necessarily results from the statement of facts, that the court can be called upon to say to the jury that a fact established negligence as a matter of law. If the conclusion of negligence, under the facts stated, may or may not result, or shall depend on other circumstances, the question is one of fact for the jury.
    6. Same—evidence—absence of flagman at public crossing. Although no ordinance of a city required a flagman to be placed at a street crossing by the railway company, where a person receives an injury in attempting to cross, yet in an action by the injured party against the company, for damages, the fact that there was no flagman there may be properly shown to the jury as one of the existing circumstances attendant upon the injury.
    7. In such case, while the absence of a flagman at such crossing was not negligence of itself, yet such absence, in connection with proof of the condition of things in respect to the population, travel, and otherwise, in that particular locality, would shed light upon the question of the care and caution on the part of the defendant in running its trains that the safety of the public might reasonably require.
    8. Such evidence being properly admitted, and the court having instructed the jury that there was no absolute duty imposed on the company, by law, to keep a flagman at the crossing, and that such omission was not of itself negligence, there was no error in the court declining to tell the jury they should entirely disregard such circumstance in passing upon the question whether or not the company was guilty of the negligence charged in the declaration.
    9. Pleading and evidence—allegations and proofs. In an action against a railway company to recover for a personal injury at a public street crossing, the declaration contained five counts, the fourth of which charged that the speed of the train was in excess of that fixed by an ordinance of the city. A demurrer was sustained to each count, and under leave to amend, only the third and fifth counts were amended. Afterward, the defendant filed another demurrer, pm-porting to be to “the amended declaration, and to each and every count thereof,” which was overruled, and then the defendant filed the general issue, not limited to any particular counts, but going to the whole declaration, upon which issue was taken: Held, that the ordinance of the city was properly admitted in evidence, and that an instruction based upon the fourth count was properly given.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Ogle county; the Hon. William Bbown, Judge, presiding.

      This was an action on the case, brought in the Ogle circuit court, by appellee, Elliott Lane, a minor, by his next friend, Gilbert Lane, against the Chicago and Iowa Railroad Company, appellant.
    The injury complained of resulted from a collision between a passenger train on appellant’s road and a team and wagon driven by appellee, in the city of Rochelle, at a street crossing, on the 29th day of July, 1887. Bartholomew street runs north and south through Rochelle, and appellant’s road runs through the city in an easterly and westerly direction, crossing Bartholomew street. At the crossing of this street and the railroad the collision occurred, resulting in the loss of an arm to appellee.
    It appears from the evidence, that the train which collided with the wagon was going east, and the wagon was going south on Bartholomew street. On the north side of the railroad track, and just west of the line of the street, there was on the day of the accident, and had been for a long time before, various and serious obstructions on the north side of the railroad right of way. There was a coal. chute, and west of that a trestle-work ten feet higher than the track. There was a thick hedge fence on the line of defendant’s right of way, about fifteen feet high, just north of defendant’s track, coming up to the sidewalk, and west of that there was a high board fence. Just north of the coal chute there were some trees, a brick house and barn. These obstructions all lay so as to obstruct, to a greater or less degree, the line of vision of appellee as he came near the railroad crossing going south. The first count of the declaration charges that these obstructions were permitted to be on the defendant’s right of way, and were of such character as to prevent persons approaching the track from the north from seeing approaching trains from the west, and that defendant was guilty of negligence in so allowing such obstructions on its right of way, and also charges that it ran its train at a high and dangerous rate of speed, and that it neglected to ring a bell or sound a whistle, as required by statute. The second count alleges the existence of the same obstructions as in the first, and avers that, by reason of its dangerous character, it was the duty of defendant to keep a flagman at that crossing,- and that it was guilty of negligence in not doing so. The fourth count charges negligence, in that the defendant ran its train, on the day of the accident, at a high and dangerous rate of speed, and in violation of an ordinance of the city of Rochelle prohibiting trains from running faster than ten miles an hour within its corporate limits.
    A jury trial was had on a plea of the general issue, resulting in a verdict and judgment for plaintiff below for $2500, and that judgment was affirmed in the Appellate Court for the Second District.
    Mr. M. D. Hathaway, and Mr. William Lathrop, for the appellant :
    If a party rushes into danger, which, by ordinary care, he could have seen and avoided, no rule of law can be invoked to compensate him for the injury he may receive. Railroad Co. v. Gretzner, 46 Ill. 82; Railroad Co. v. Manly, 58 id. 300; Railroad Co. v. Bell, 70 id. 102.
    As to the duty of a party to stop before driving upon a railroad track, see Railroad Co. v. Hart, 87 Ill. 529; Railway Co. v. Hatch, 79 id. 137 Railway Co. v. Hutchinson, 120 id. 587; Seefield v. Railroad Co. 70 Wis. 216; Messinger v. Densire, 137 Mass. 197.
    Appellee was entitled to recover only for the specific act of negligence charged in his declaration. Railroad Co. v. McKee, 43 Ill. 119; Railroad Co. v. Godfrey, 71 id. 500; Manufacturing Co. v. Ballou, id. 417; Railroad Co. v. O'Conner, 115 id. 254; Railroad Co. v. Bell, 112 id. 360; Pennsylvania Co. v. Frana, id. 398; Railway Co. v. Coble, 113 id. 115.
    There was no law or ordinance of the city of Rochelle requiring the railroad company to keep a flagman at this crossing, and the court erred in permitting the appellee to introduce evidence that no flagman was kept there, or that there was no flagman at the crossing at the time of the accident, against the objection of appellant.
    If it may be left to a jury to say whether a flagman is necessary at any railroad crossing, and that the railroad company is guilty of negligence in running its train over such crossing without such flagman, then it would matter but little what the evidence of care and prudence in running the train might be, as the jury, from sympathy with one so injured, would unquestionably find the railroad company guilty. Such question is not for the jury. Beifeigel v. Railroad Co. 40 N. Y. 9; Dyer v. Railway Co. 71 id. 228.
    Messrs. O’Brien & O’Brien, for the appellee:
    Evidence that no flagman was stationed at the crossing was admitted as a circumstance bearing upon the question of negligence in the running of appellant’s train. Its effect was limited by the court in admitting it. That such evidence was proper, see Cordell v. Railroad Co. 70 N. Y. 119; Richardson v. Railroad Co. 48 id. 846; Railroad Co. v. Dunn, 78 Ill. 197; McGrath v. Railroad Co. 25 N. Y. 527; Weber v. Railroad Co. 58 id. 451; Linfield v. Railway Co. 10 Cush. 562; Commonwealth v. Railroad Co. 101 Mass. 202; Norton v. Railroad Co. 113 id. 369; Favor v. Railroad Co. 114 id. 352; Gugenheim v. Railroad Co. 57 Mich. 448; Eaton v. Railroad Co. 129 Mass. 365; Thomas v. Railroad Co. 8 Fed. Rep. 728; Railroad Co. v. Dill, 22 Ill. 264; Railroad Co. v. Ebert, 74 id. 399; Railroad Co. v. Siltman, 88 id. 529; Railroad Co. v. Lee, 87 id. 458.
    The third of appellant’s instructions refused takes from the jury the question of due care on the part of the appellee, and was properly refused. The same is true of the fourth, and the rule announced by it, requiring appellee to stop his team, is not the law in this State. Railroad Co. v. Lee, 87 Ill. 460; Mackey v. Railroad Co. 35 N. Y. 75; Huckshott v. Railroad

      Co. 18 Am. and Eng. R. R. Cas. 663; Railroad Co. v. Martin, 8 id. 253; 6 id. 95; Kellogg v. Railroad Co. 79 N. Y. 72; Elbert V. Railroad Co. 48 Wis. 606; Duffy v. Railway Co. 32 id. 269; Davis v. Railroad Co. 47 N. Y. 400; Pennsylvania Co. V. Frana, 112 Ill. 404.
    It is a question for the jury. Gugenheim v. Railroad Co. 57 Mich. 448; Laverenz v. Railroad Co. 56 Iowa, 689; Mossoth v. Railroad Co. 64 N. Y. 324.
    The permission that appellee might sue as a poor person can not be assigned for error.
   Mr. Justice Baker

delivered the opinion of the Court:

One of the assignments of error is, that the circuit court permitted appellee, by his next friend, Gilbert Lane, to prosecute as a poor person.

Section 5, of chapter 33, of the Bevised Statutes, provides: “If any court shall, before or after the commencement of any suit, be satisfied that the plaintiff is a poor person, and unable to prosecute his suit and pay the costs and expenses thereof, the court may, in its discretion, permit him to commence and prosecute his action as a poor person; and thereupon such person shall have all the necessary writs, process and proceedings, as in other cases, without fees or charge.”

The statute is broad enough in its terms to include all resident plaintiffs, whether they be adults or minors, who are poor persons, and are unable to prosecute their suits and pay costs and expenses. It is urged, however, that the words of the amendment made in 1881 to section 18, of chapter 64, of the Eevised Statutes, entitled “Guardian and Ward,” are such as preclude such construction. The language of the amendment is: “Provided, that any suit or proceeding may be commenced and prosecuted by any minor, by his next friend, without any previous authority or appointment by the court, on such next friend entering into bond for costs, and filing the same in the court in which * * * such suit or proceeding is instituted.” Said section 5, of chapter 33, and said proviso enacted in 1881, are to be regarded as in pari materia, and should be construed together, and a sensible and intelligent effect given to the provisions of each. It would be a harsh rule, and one which would involve an unreasonable and unjust discrimination which should not be imputed to the legislative intention, that an adult man, who happens to be a poor person, should have the privilege of prosecuting his suit in forma pauperis, and without being required to give security for costs, and that an infant, who is equally poor, should be denied such privilege, and compelled to give such security. The matter of permitting a plaintiff to prosecute his suit as a poor person, is left, by the express terms of the statute, to the judicial discretion of the court where such suit is commenced or is pending, and as in this case the affidavits upon which the court acted in granting such permission are not preserved in a bill of exceptions, it is to be presumed it was sufficiently shown that both appellee and his next friend were poor persons, within the purview of the statute, and unable to give security for costs. There was no error in allowing the cross-motion of appellee to permit him to prosecute as a poor person, and in overruling the motion made by appellant for security for costs.

The duty of a person approaching a railroad crossing with a wagon and team, even when such wagon is old and makes considerable noise, and when he knows there are obstructions which to some extent interfere with the view of an approaching train, and also knows a train is due about that time, to bring his team to a full stop before driving upon the railroad track, is not so absolute and unqualified as that a court can say, as matter of law, and regardless of all other attendant circumstances, that such person is guilty of a want of ordinary care. It is for the jury to determine, from all the facts and circumstances in proof, whether or not there was negligence, and it is not for the court to tell them that certain facts constitute such negligence as precludes a recovery. (Chicago, Burling ton and Quincy Railroad Co. v. Lee, Admx. 87 Ill. 454; Pennsylvania Co. v. Frana, 112 id. 398; Continental Improvement Co. v. Stead, 5 Otto, 161.) There was, therefore, no error in the ruling of the court upon the fourth refused instruction asked by appellant, or in its refusal to give the appellant’s third refused instruction, which also took the questions of ordinary care, and of negligence on the part of appellee, away from the jury.

The court also denied the motion of appellant to give the following instruction:

“The court instructs the jury that the fact, (if you so believe from the evidence) that the defendant did not have or keep a flagman at the crossing in question is not evidence of negligence of the defendant, under the issues in this suit, and the jury should entirely disregard the same in passing upon the question of whether or not defendant was guilty of negligence as charged in the declaration in this cause.”

There was evidence before the jury tending to prove that the place where the collision occurred was in a thickly populated neighborhood, about three blocks from the business center of the city, and that there was considerable travel on Bartholomew street at that place. The court, over the objections of appellant, had admitted evidence that there was no flagman at the crossing. The court, in instructing the jury, told them that evidence as to whether a flagman was stationed at the crossing in question at the time of the alleged injury had been admitted, not as tending to show any neglect on the part of the company in that regard, but solely as bearing on the question of the alleged negligence on the part of the company in running its engine and train; and further, that there was no absolute duty imposed on the company by law to maintain a flagman at the crossing in question, and a failure to maintain or have a flagman there was not, of itself, negligence, and that the jury should not consider the evidence as to whether a flagman was maintained or stationed there, as tending, of itself, to establish negligence. Although there was no ordinance requiring a flagman to be placed at the' crossing, yet we think the fact there was none there was properly allowed to be shown to the jury as one of the existing circumstances attendant upon the alleged injury. The absence of a flagman' was not negligence, yet such absence, in connection with proof of the condition of things, in respect to population, travel, and otherwise, in that particular locality, would shed light upon the question of the care and caution on the part of appellant in running its trains that the safety of the public would reasonably require. The instructions the court gave sufficiently guarded the interests of appellant against any improper inference that might be deduced from the circumstance there was no watchman, and the court very properly declined to tell the jury they should entirely disregard such circumstance in passing upon the question whether or not appellant was guilty of the negligence charged in the declaration.

The substance of instruction No. 4, given for appellee, was, that if, at the time of the injury, there was an ordinance in force in the city of Rochelle, limiting the rate of speed of locomotive engines and trains of cars within the city to ten miles an hour, and the place where plaintiff was injured was within the city, and the defendant, by its servants, on the occasion of the injury, ran its train within the limits of the city up to and across Bartholomew street at a greater rate of speed than ten miles an hour, and struck and injured the plaintiff, as charged in the declaration, in consequence of running its train at a greater rate of speed than ten miles an hour up to and across said street, and plaintiff used and exercised due care and caution for his own safety, then the defendant was liable. It is objected to this instruction that a demurrer was sustained to all five counts of the original declaration; that under the leave taken to amend, only the third and fifth counts were amended; that there were issue and trial only on them; that neither the third nor the fifth count alleged any ordinance of the city of Bochelle, or charged the violation of any ordinance of the city by appellant in running its trains, and that, consequently, as appellee could only recover for the specified acts of negligence charged in the declaration, it was error to admit in evidence the ordinance of said city, and error to give said instruction. This is very clearly a misapprehension of the record. It appears therefrom that the ordinance in question was properly pleaded in the fourth count of the declaration, and that on December 13,1887, a demurrer was sustained to all five of the counts, and leave given to amend. It further appears from the record, that on December 24, 1887, appellant filed another demurrer, which purports to be to “the said amended declaration, and each and every count thereof, ” and the demurrer is special, and points out specific objections to each and. every of the five counts of the amended declaration, and the cause of demurrer shown therein to the amended fourth count is as follows: “That the plaintiff does not, in and by the fourth count of his said amended declaration, aver or state that he, the plaintiff, used due care and caution in approaching the crossing where the injury alleged occurred.” The record further shows, that on January 5, 1888, the demurrer to the amended declaration was overruled, and that on January 9, 1888, appellant filed a plea of not guilty, which was not limited to any particular count or counts, but went to the whole ■declaration, and that issue was joined thereon. The premises upon which appellant bases its contention being contradicted by the record, the conclusion reached, as matter of course, is wrong.

The ninth instruction given for appellee states the doctrine of comparative negligence with unusual accuracy and perspicuity, and embodies in it the requirement of ordinary care on the part of appellee. Appellant insists the instruction is “wrong, inapplicable, and should not have been given, for the reason the evidence established appellee’s gross negligence as matter of law, and the court should have so instructed the jury, instead of giving this instruction in reference to comparative negligence, ” and cites Chicago and Eastern Illinois Railroad Co. v. O'Connor, 119 Ill. 686, as sustaining such claim. The doctrine of that case is, that it is only when the conclusion of negligence necessarily results from the statement of fact, that the court can be called upon to say to the jury that a fact establishes negligence as a matter of law, and that if the conclusion of negligence, under the fact stated, may or may not result, or shall depend on other circumstances, the question is one of fact for the jury.

The contention of appellant that appellee was guilty of such negligence that, as matter of law, it precludes him from the right of recovery, is based upon the facts as stated by appellee himself. His evidence was: “I had a lumber wagon and a team. One of them was from sixteen to eighteen years old, the other from nine to ten. I was standing up in the wagon. I approached the railroad crossing from the north, and was driving south. There is a cross-walk one street north of the railroad, on Bartholomew street. It is about ten rods north of the crossing. From the cross-walk I went in a slow trot,— a jog. I went slower before I got to the track. From the time I left the cross-walk until I reached defendant’s track I looked for trains three or four times. I listened as well as I could. My hearing was good. My eyesight was good. I looked for trains east and west,—both ways. I was about five feet four inches tall.” The witness described the obstructions to the view, and continued: “I was nearly on the track when I saw the train: I seen it, and I tried to stop the horses, or pulled upon them, and they saw the train, and it scared them, and they started, and that is about the last I remember. I saw the engine; it was running towards me—running east. When I first saw the engine the horses’ heads were nearly on the track,—probably within five or six feet of the track,—and the engine was probably a rod off. I didn’t hear any bell ring on the engine that day. I was driving my team and looking for a train. I was listening for the train. I could not say whether the bell rung or the whistle sounded. I didn’t hear it. I had driven along there more than a dozen times, probably; I guess about twenty times. I was going about four miles an hour when I went over the cross-walk. From the street crossing to the railroad I was going less than four miles an hour. It was an old wagon. It made considerable noise when I was driving on a trot or jog. I commenced making observations when I was up at the walk—was looking around to see if there were any trains coming. I knew about what time the train generally came in. I didn’t have any time with me; didn’t know as to what time it was; knew there was a train coming before noon. I didn’t stop my team to a dead halt to listen to know whether any train was coming. I didn’t stop my team off from a-slow trot.”

We are unable to say, from this testimony, that there was no evidence tending to prove the exercise of ordinary care on the part of appellee, or that the court should, of its own motion, have instructed the jury, as matter of law, that appellee was guilty of such negligence as prevented a recovery by him, or that it was error to submit to the jury the question of comparative negligence.

Very numerous other objections are urged to the instructions given for appellee, but they are technical and without merit, and do not require special notice. The instructions were substantially correct, though some of them may be open to verbal criticism, as not being technically accurate. The jury was fully and fairly instructed, and the fifteen instructions which were given at the instance of appellant stated the law as favorably to it as could reasonably be asked.

All controverted questions of fact have been settled by the verdict and judgments below.

We find no error in the record that would justify a reversal, and the judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Wilkin Mr. Justice Craig :

text:
    Joseph T. Anthony et al. v. John C. Wheeler.

      Filed at Ottawa

      October 31, 1889.

    1. Beoobding- law—/rom what time a deed takes effect—as to subsequent purchaser. Under the statute, all deeds and other instruments affecting the title to land are made valid and operative only from and after the time they are recorded in the proper office, and they will take effect only from such recording, as to subsequent purchasers without notice.
    2. Same-—prior unrecorded deed—notice to subsequent purchasers. Actual notice is not essential to give effect to a prior unrecorded conveyance. Any fact or circumstance coming to the knowledge of the subsequent purchaser which would put a prudent man on inquiry, and which, if pursued, would lead to actual notice of an unrecorded deed lying in the apparent chain of his title, is sufficient to invalidate the subsequent purchase.
    3. In such case, notice is imputed to the subsequent purchaser, on account of his negligence in failing to prosecute his inquiries in the direction indicated. Enough must be shown to impute to him bad faith, so as to taint his purchase with fraud. Mere want of caution, as distinguished from fraudulent and willful blindness, is not sufficient to charge a subsequent purchaser with constructive notice of an unrecorded deed.
    4. Same—as to unrecorded administrator’s deed—notice. Administrators’ deeds are within the statute for the recording of deeds, etc. But the record of a decree of the county court authorizing a sale of lands to pay debts is not constructive notice of the making of an administrator’s deed, even though such decree may be in the court of the same county in which the land lies.
    5. An unrecorded administrator’s deed, in the absence of actual notice of it, or the proceeding under which it was obtained, is not such constructive notice as will invalidate the title of a subsequent bona fide purchaser.
    6. Same—subsequent purchaser-—bona fides—presumption. Where a party takes a conveyance for land, it will be presumed that he is a bona fide purchaser, and the burden of proof to show bad faith or want of consideration lies upon those attacking such deed.
    7. Beactice—directing what the verdict shall be. Under our practice, the trial court may properly instruct the jury to find for the defendant, when the plaintiff wholly fails to make proof of any material part of his case. The court may also allow a similar instruction in behalf of the plaintiff. Such an instruction is not proper if there is,any competent evidence tending to support a different verdict.
    Appeal from the Superior Court of Cook county; the Hon. John P. Altgeld, Judge, presiding.
    Messrs. Sawin & Vanderploeg, and Mr. F. P. Simons, for the appellants:
    Upon the death of an ancestor, the real estate he may leave undevised.descends at once and vests in the heir, subject to the lien of his ancestor’s debts, if personal property is insufficient to pay them; and such a title is deemed worthier in law than a title by devise. Smith v. McConnell, 17 Ill. 135; McCoy v. Morrow, 18 id. 519; Bishop v. O’Conner, 69 id. 431; Kennedy v. Northup, 15 id. 148.

      Caveat emptor applies strictly and with full force to administrators’ sales. Donlin v. Hettinger, 57 Ill. 348; Fell v. Young, 63 id. 106; Walden v. Gridley, 36 id. 532; Bishop v. O’Conner, 69 id. 431.
    An administrator’s proceeding to sell is void as against those who are not made parties, and over whose persons the court has no jurisdiction. Detrick v. Migatt, 19 Ill. 146; McConnel v. Smith, 23 id. 611; Morris v. Hogle, 37 id. 150; McConnel v. Smith, 39 id. 279; Huis v. Buntin, 47 id. 396; Botsford v. O'Conner, 57 id. 72; Long v. Thompson, 60 id. 27; Smith v. Laatsch, 114 id. 271; Michel v. Hicks, 19 Kan. 578.
    That the' heir was a necessary party, see Stone v. Wood, 16 Ill. 177; McConnel v. Smith, 23 id. 611; Hopkins v. McCann, 19 id. 113.
    But appellee’s title under this chain is void as against the appellants, because his deed was not recorded until July 1, 1885, while that of Caroline M. Robertson was recorded June 13, 1885. Kennedy v. Northup, 15 Ill. 148; Brown v. Coal Oil Co. 91 id. 214.

      Possession under an unrecorded deed, to be notice to subsequent purchasers, must be open, visible and exclusive at the time of such purchase, and must be of such a character as to apprise the community that the occupant under the unrecorded deed has appropriated the property to his exclusive use. Clark v. Morris, 22 Ill. 434; Truesdale v. Ford, 37 id. 210; Smith v. Heirs, 76 id. 254; Harris v. McIntyre, 118 id. 275; McMechan v. Griffing, 3 Pick. 150.
    Mr. William J. Ammen, and Mr. George F. Harding, for the appellee:
    As to what is constructive notice to a purchaser, of a prior unrecorded deed, see 7 Wait’s Actions and Defenses, 365; 3 Washburn on Real Prop. (5th ed.) 343-349 ; Stokes v. Riley, 121 Ill. 166; Chicago v. Witt, 75 id. 211; Wade on Notice, 27.
    The court properly instructed the jury to find for the plaintiff. Simmons v. Railroad Co. 110 Ill. 340; Phillips v. Dickerson, 85 id. 11; Railroad Co. v. O'Connor, 115 id. 254; Bartlett v. Bank, 119 id. 259.
    The power of an administrator to sell land to pay debts is frequently called a lien, which may be enforced against purchasers from the heir. McCoy v. Morrow, 18 Ill. 519; Vansyckle v. Richardson, 13 id. 171.
    A party having sufficient notice to put him on inquiry, will be charged, under the law, with constructive notice of all to which such inquiry would lead. Bank v. Dayton, 116 Ill. 257; Harper v. Ely, 56 id. 179; Babcock v. Lisk, 57 id. 327; Bent v. Coleman, 89 id. 364; Doyles v. Teas, 4 Scam. 202; Erickson v. Rafferty, 79 id. 209; Railroad Co. v. Kennedy, 70 id. 350; Rupert v. Mark, 15 id. 541; McConnel v. Reed, 4 Seam. 123; Merrick v. Wallace, 19 Ill. 486; Morrison v. Kelly, 22 id. 610; Morris v. Hogle, 37 id. 150; Hatch v. Bigelow, 39 id. 546; Grundies v. Reid, 107 id. 304; Crawford v. Railroad Co. 112 id. 314; Dean v. Lony, 122 id. 447; Stokes v. Riley, 121 id. 166; McLaurie v. Thomas, 39 id. 291; Stone v. Smoot, id. 409;
      Heaton v. Prather, 84 id. 330; Hankinson v. Barbour, 29 id. 80; Slattery v. Rafferty, 93 id. 277; 2 Sugden on Vendors, chap. 17, pp. 335, 336.
    Administrators’ deeds are embraced in the statute relating to the recording of deeds. Choteau v. Jones, 11 Ill. 324.
    The decree of the county court for the sale of the land by the administrator is notice lis pendens. Bennett on Lis Pen-dens, 124, 192, 251, 252.
    A purchaser must look to every part of the title which is essential to its validity. Brush v. Ware, 15 Pet. 93.
    When a purchaser can not make out his title but through a deed which leads to a fact, he will be affected with notice of that fact. Martins v. Joliff, Amb. 311; 1 Story’s Eq. Jur. sec. 399.
    The law requires reasonable diligence in a purchaser to ascertain any defect of title. The rights of innocent persons ought not to be prejudiced through his negligence. Jackson v. Livingston, 10 Johns. 574; Willis v. Bucher, 2 Binn. 455.
    Every man shall be presumed to have notice of a decree •whereby his own title is affected. Fonblanque’s Eq. book 3, chap. 3, sec. 1, and note; 1 Story’s Eq. Jur. 406.
    The recording acts apply only to such as have obtained a subsequent deed from the same person who executed the prior one. 1 U. S. Dig. Supp. 800, see. 221; Herbemont v. Bostick, 2 Brev. 435; Stokes v. Riley, 121 Ill. 166.
   Mr. Justice Wilkin

delivered the opinion of the Court:

This is an action of ejectment, to recover parts of a city lot in Chicago. At the time suit was brought, appellants were in possession, claiming title under certain tax deeds and by virtue of a quitclaim deed from one Carrie Walker, and Samuel 0. Walker, her husband, to appellant Caroline M. Robertson, dated June 9, 1885, and recorded on the 13th of the same month. Appellee, claiming to hold the paramount title, brought this suit to the June term, 1886, of the Superior Court of Cook county.

On the trial, testimony was introduced0 by both parties, which, on some of the questions involved, was conflicting. After the evidence was closed, the judge, against the objection of the defendants, instructed the jury to find for the plaintiff, and on verdict being returned, and motions for new trial and in arrest of judgment overruled, judgment was entered for the plaintiff for the premises claimed, and for costs. Defendants prayed this appeal.

Numerous errors are assigned on the record. The fourth presents the principal question in the case, viz: “The court erred in instructing the jury to find a verdict for the plaintiff.”

Although the practice of thus taking a case from the jury has been often questioned in this court, it is now so firmly established as to no longer require the citation of authorities in its support. The question has generally arisen on instructions to find for the defendant, in cases where it was thought the plaintiff had wholly failed to make proof of some material part of his case; but the practice extends to and allows a similar instruction on behalf of the plaintiff, as expressly decided in the late case of Heinsen v. Lamb, 117 Ill. 549,—a case similar to this. The important question in every case in which such an instruction is given is, was there competent evidence tending to support a different verdict from the one directed by the court,—the theory upon which the practice is approved being, that whether or not there is such evidence is a question of law, to be determined by the court.

It is said by counsel for appellee, that the ground upon which the instruction was given in this case was, that the plaintiff had shown, by undisputed proof, a fee simple title from the admitted common source, and that the defendants were chargeable with constructive notice of the unrecorded deed wider which he claims, and that all other evidence admitted upon either side, was, in that view, incompetent or immaterial, and we are convinced that upon no other theory of the case can even a plausible argument be adduced in its support.

By reference to the bill of exceptions, we find that Martin 0. Walker, the common source of title, died May 24, 1874, seized in fee of the property in question. He left two sons, Samuel 0. and Edward S., his only heirs. Plaintiff below, to establish his title, offered in evidence quitclaim deeds from these heirs to one Charles Fargo, dated September 20, 1875, and recorded two days thereafter, that from Edward S. being in consideration of $900, and the other of one dollar and other valuable consideration; also, a quitclaim deed, in consideration of one dollar, from said Fargo to Carrie Walker, who was the wife of Samuel 0. Walker, dated March 23,1877, recorded November 2, 1878; also, a quitclaim deed, in consideration of one dollar, from said Carrie Walker, and Samuel 0. Walker, her husband, to George F. Harding, dated July 20,1887; also, a warranty deed from said Harding and wife, to appellee, in consideration of $500, dated May 7, 1883. Neither of these last two deeds was recorded until July 1, 1885. He also offered in evidence the record of a proceeding in the county court of Cook county, showing that in March, 1876, Augustus L. Chet-lain, administrator of Martin O. Walker, deceased, filed his petition, praying an order of said court to sell this and other real estate belonging to said deceased, to pay debts; also, a deed of August 30, 1878, and report of said administrator, showing a sale of the property in question to one George R. Grant on the 15th day of October, 1878, for $100, which report was approved October 19, 1878. He also introduced in evidence an administrator’s deed from said Chetlain, administrator, to said Grant, dated October 15, 1878, and recorded July 1, 1885, and a quitclaim deed from said Grant to George F. Harding, dated February 25,1883, in consideration of one dollar, recorded July 1, 1885. Defendants below introduced the above mentioned deed from Carrie Walker and her husband to Caroline M. Robertson, and also two tax deeds,—one dated March 23,1877, recorded the 26th of that month, and another dated March 31, 1881, recorded April 5, 1881,— and from these, through mesne conveyances, the said Caroline M. Robertson, on December 17, 1884, received a deed from appellants Jennie B. Bryan and husband, which was recorded December 19,1884. In our view of the case it is not necessary to inquire into the validity of appellants’ title through these tax deeds.

It will be seen from the foregoing statement, that when Caroline M. Robertson received her deed from Carrie Walker, June 9,1885, and placed it on record June 13,1885, there was no deed of record by which her title could be questioned. All the deeds through which appellee claims, both under the administrator’s sale and the deed from this same Carrie Walker, remained unrecorded until July 1, 1885. We shall also, for the purposes of this opinion, treat the proceeding of the administrator, in the county court, to sell land to pay debts, as in all respects valid. Therefore, from that source, appellee established, by undisputed proof, a claim of title which would have vested the fee in him, as against appellants, had - his deeds been recorded before the deed from Carrie Walker to Caroline M. Robertson. The question then is, are the facts proved so conclusive of notice to appellants of the unrecorded deeds of appellee, as to justify the court in withdrawing that question from the jury?

It is not claimed that there was actual notice of any of these unrecorded deeds. Our statute requires all deeds or other instruments relating to or affecting the title to real estate, to be recorded, and expressly provides that they shall take effect only■ from and after such recording, as to all subsequent purchasers without notice. When we say that notice of a prior deed shall have the same effect as recording, we but repeat the language of the statute. The question, however, still remains, who is a “subsequent purchaser without notice,” within the meaning of the law?

It is well settled that actual notice is not essential to give effect to a prior unrecorded conveyance. The difficulty in such cases usually arises from the necessity of determining what shall be held sufficient constructive notice, and that is what we are called upon to do here. It is stated by the authorities generally, that any fact or circumstance coming to the knowledge of the subsequent purchaser, which would put a prudent man on inquiry, and which, pursued, would lead to actual notice of an unrecorded deed lying in the apparent chain of his title, is sufficient to invalidate the subsequent purchase. In such case, notice is imputed to the subsequent purchaser, on account of his negligence in not prosecuting his inquiries in the direction indicated. (Wade on Notice, sec. 246.) Enough must be shown to impute to the subsequent purchaser bad faith, so as to taint his purchase with fraud, in law. (Doyle et al. v. Teas et al. 4 Seam. 202.) Mere want of caution, as distinguished from fraudulent and willful blindness, is not sufficient to charge a subsequent purchaser with constructive notice of an unrecorded deed. Grundies v. Reid et al. 107 Ill. 304.

Here, the appellee insists that appellants had constructive notice of the unrecorded administrator’s deed, within the rule above stated. The position sought to be maintained is, that the proceedings in the county court were sufficient to put her on inquiry, which, properly pursued, would have led to knowledge of the administrator’s deed. There is no proof whatever that she had actual knowledge of that proceeding. An attempt was made to show that such knowledge was brought home to her husband, who seems to be the real party in interest, through an abstract of the title; but this he denies, and we think the weight of the evidence is that he had no such actual notice,— at least it can not be claimed that there is not a fair conflict of evidence on that point, even as to him. In fact, the argument of counsel for appellee is not based, on the theory of actual notice of that proceeding, but they maintain, that inasmuch as the proceeding was had in the county court of the county in which the land is located, appellants were bound to know what had been done in that court, and from that knowledge pursue the inquiry as to whether or not a deed had been made. The logical result of the position is, that the Registry law of this State has no application to administrators’ deeds, when the proceeding under which the sale is made is had in the county where the land is located.

In Choteau v. Jones et al. 11 Ill. 300,—cited by counsel for appellee as sustaining their position,—one of the questions raised was, whether or not an unrecorded administrator’s deed, made in pursuance of a decree rendered in a county other than that in which the land was situated, was constructive notice to subsequent purchasers. Treat, G. J., rendering the opinion of the court, after quoting the Recording act of the 18th of January, 1853, says: “Administrators’ deeds would seem to be clearly within the letter of this statute. They are clearly within the reason and spirit of its provisions.” It is true, he says: “In the county where the order of sale is made, there would not seem to be the same necessity for the deed to be registered, and the record of the proceedings might perhaps then be held to be notice to a purchaser. Upon this point, however, we must be understood as expressing no opinion.” Here, it is expressly decided that administrators’ deeds are within both the letter and spirit of the Recording act. The position contended for by appellee is not only not decided, but an express declination on the part of the court to decide it.

In Bourland, v. County of Peoria et al. 16 Ill. 538, the question arose as to whether or not the record of the county commissioners’ court, showing a sale of real estate, should be held constructive notice of such sale, as to subsequent purchasers. It was there insisted, that the commissioners being required by law to keep, and having made and kept, a record showing the sale, it was notice of what it contained, in relation to the title of the county, to all subsequent purchasers. It was held that the position was not tenable, Spates, J., saying: “The recording acts, for the purposes of information and constructive notice, have not altered or abolished the rules of equity in relation to actual and constructive notice, by other means than the Recording act. (2 Scam. 501; 4 id. 117.) But while all this is true, it is also true that the legislature, and not the court, must add and declare the existence and effect of other records as constructive notice of title and incumbrance. Such effect is given to judgments by declaring a lien upon the lands in the county, without declaring the existence of such judgments to be constructive notice. But it must have such effect as notice in order to give it effect as a lien, and we must consequently so treat and hold it. Such, too, is the effect of the levy of an attachment when followed by a judgment. So, too, I presume, would be the levy of a fieri facias from another county when levied before the statute which required the filing of such levy with the circuit clerk and the recorder, and declared its effect as notice to be from such filing. These prders of the county court (and, we may admit, this sale-book,) were records; but still, every matter of record is not constructive notice of the subject matter of it to all strangers. No such effect has been given to these records by the recording or other laws of the State, nor can such effect be claimed for them by reason of their affecting the land, like judgments and such mesne and final process referred to. In tracing title to or through the county, as through or from any other vendors, we should go to the recorder’s books, and to the judicial records and levies, where evidences of conveyances, contracts, incumbrances and liens are kept and to be found.” This language and reasoning are equally applicable to a proceeding in the county court by an administrator for a decree to sell land to pay debts.

Stokes et al. v. Riley et al. 121 Ill. 166, does not militate against this position. There was actual notice of the judgment. Besides, the statute made the judgment in that case a lien, and the subsequent purchaser was bound to take notice, as is held in Bourland v. County of Peoria et al., supra.

An unrecorded administrator’s deed, in the absence of actual notice of it, or the proceeding under which it was obtained, is not such constructive notice as will invalidate the title of a subsequent bona fide purchaser.

The contention that appellant is not, within the meaning of the law, a bona fide purchaser, is without force. We find no evidence in the record on which to base it. The only fact suggested is inadequacy of consideration named in her deed. When we consider that the deeds through which appellee claims are all upon mere nominal considerations, it can scarcely be presumed that this property was of such great value in the market as to make the consideration named in appellants’ deed evidence of bad faith on her part. The presumption is that she is a bona fide purchaser, and the burden of proof to show bad faith or want of consideration is upon appellee. (Ryder v. Rush, 102 Ill. 338.) That, at least, was a question for the jury.

The fourth assignment of error is well made, and the judgment below must be reversed.

ju¿¿gment reversed.

Mr. Justice Craig :

I do not concur in that portion of the opinion holding that the proceedings in the county court to sell the lands to pay debts were not notice. In a proceeding to sell lands to pay debts in the county court, in the county where the lands are located, the proceedings ought to have the same force and effect, so far as notice is concerned, as a judgment or decree rendered in the circuit court. Purchasers are bound to take notice of judgments and decrees in the circuit court in the county where lands purchased are located, and I see no reason why a purchaser should not he bound to take notice of a decree in the county court, rendered in a proceeding to sell lands to pay debts.


text:
    The Wight Fire Proofing Company v. Peter Poczekai.

      Filed at Ottawa

      October 31, 1889.

    1. Evidence—opinions of witnesses. As to matters which do not so far partake of the nature of a science as to require a course of previous habit or study in order to an attainment of a knowledge of them, the opinions of witnesses, though experts, are not admissible as evidence.
    2. Same—on the question of negligence. Where the negligence of the defendant, relied on as a ground of action, is in the manner in which the servants of the defendant proceeded in getting ready for the performance of certain work, evidence to show a want of negligence in a different matter will be properly excluded.
    3. Practice — directing what the verdict shall be. Where there is evidence tending to prove the facts necessary to a recovery by the plaintiff, it is not error for the trial court, at the conclusion of the plaintiff’s case, to refuse to instruct the jury to find for the defendant.

      i. In an action to recover damages for an injury caused by alleged negligence on the part of the defendant, the court modified an instruction asked by the defendant, by the insertion of the word “sufficient,” so that it concluded: “If the fact of negligence be doubtful, the defendant is entitled to the verdict. The fact of an accident having occurred is not of itself [sufficient] evidence of negligence : ” Held, that there was no error in the modification. In such case, the fact that a girder on the roof of a house did fall, the falling of which caused the injury, afforded some evidence of negligence under the circumstances proved, and the court properly refused to exclude that fact wholly from the consideration of the jury on the question of negligence.
    5. Same—time to object—for a variance. A party must take advantage of a variance between the pleadings and the evidence in the trial court, so that it may be obviated by amendment. The failure to there object will be regarded as a waiver of the objection.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. John P. Altgeld, Judge, presiding.

      Mr. William Eliot Furness, for the appellant:
    This court may review the evidence to see if it justified the rulings of the trial and Appellate courts. Holmes v. Railroad Co. 94 Ill. 444; Union Ry. Co. v. Shacklet, 119 id. 232 ; Railroad Co. v. Thompson, 116 id. 159; Launtz v. People, 113 id. 144; City of Mattoon v. Fallin, id. 250 ; Fitch v. Johnson, 104 id. 119.
    Not only must negligence be shown, but this negligence must be shown to have caused the accident. Shearman & Redfield on Negligence, sec. 25 ; Weeks on Damnum Absque Injuria, sec. 120; Bigelow on Torts, chap. 16, sec. 9; Pollock on Torts, pp. *252, 360; Blackstone’s Pub. Ed.; Hammack v. White, 11 C. B. (N. S.) 588; Callon v. Wood, 8 id. 568; Railroad Co. v. Jones, 76 Ill. 311; Hunting v. Baldwin, 6 Bradw. 547; Cooley on Torts, (ed. 1880,) pp. 68, 69; Marble v. City of Worcester, 4 Gray, 395 ; Haley v. Railroad Co. 21 Iowa, 15 ; Railroad Co. v. Carroll, 12 Bradw. 643 ; Harlan v. Railroad Co. 65 Mo. 22; Daniel v. Railroad Co. L. B. (3 C. P.) 216; Holbrook v. Railroad Co. 12 N. Y. 236; Kelsey v. Jewett, 28 Hun, 51; State v. Railroad Co. 58 Md. 482; Railroad Co. v. Boyer, 97 Pa. St. 91; Pennsylvania Co. v. Hensil, 70 Ind. 569; Lester v. Pittsford, 7 Vt. 158; Crandall v. Transportation Co. 16 Fed. Rep. 75; Smith v. Railroad Co. 37 Mo. 287; Parrott v. Wells, 15 Wall. 524.
    There is a variance between the declaration and the evidence. Railroad Co. v. McKee, 43 Ill. 119; Railroad Co. v. Toss, 88 id. 551; Railroad Co. v. Morgan, 72 id. 155; Gavin v. Chicago, 97 id. 66; Bloomington v. Goodrich, 88 id. 558; Railroad Co. v. Beggs, 85 id. 80; City of Mattoon v. Fallin, 113 id. 249.
    The modifying of the instruction of the defendant may have prejudiced the jury.
    The refusal to allow the witness Wight to answer the' questions as to the effect of putting up the centering boards, was error, because the witness might have shown that the continuing to work by the defendant’s servants,—their work being to put up the centering boards,—was not negligence, but the very reverse.
    Mr. Nelson Monroe, for the appellee:
    In -this case, which was one for negligence, a recovery was had in the trial court, which judgment was affirmed by the Appellate Court. This court is precluded from considering or from examining any of the controverted questions of fact, or from considering whether the verdict is sustained by the evidence. Railroad Co. v. Morgenstern, 106 Ill. 216; Fitch v. Johnson, 104 id. 111; Bennett v. Connelly, 103 id. 50; City of Mattoon v. Fallin, 113 id. 249; Bridge Co. v. Comrs. of Highways, 101 id. 518.
    The point endeavored to be made in appellant’s brief is, that this court, while it can not review any controverted questions of fact, may examine the facts as to whether they are sufficient to sustain a recovery or authorize the judgment. This is not the rule.
    The rule, as laid down by the court, is, that the judgment of the Appellate Court is conclusive, not only of the evidentiary facts, but also the principal facts upon which a right of recovery is claimed. Bridge Co. v. Comrs. of Highways, 101 Ill. 518; City of Mattoon v. Fallin, 113 id. 249; Fitch v. Johnson, 104 id. 111.
    This court can not review questions of fact, except as to the ruling of the trial court as to their admission in evidence, or for the purpose of passing upon the instructions. Bridge Co. v. Comrs. of Highways, 101 Ill. 518; City of Mattoon v. Fallin, 113 id. 249.
    The objection of a variance can not be made for the first time in this court. City of Elgin v. Kimball, 90 Ill. 356; Snell v. Cottingham, 72 id. 161; Railroad Co. v. Estes, 96 id. 470.
    Both of the two questions asked, to which the court refused to allow answers by the witness, were questions for the jury to answer in their own minds, after they had been told all the facts and circumstances connected with and surrounding the matters which were being inquired about. Pennsylvania Co. v. Conlan, 101 Ill. 93.
   Mr. Justice Baker

delivered the opinion of the Court:

Appellee recovered judgment in the Superior Court of Cook county, in case, for $2000, and on appellant’s appeal the judgment was affirmed by the Appellate Court for the First District.

Busse & Sturtevant had the contract for the mason work on a building which the Phoenix Insurance Company of Brooklyn was erecting on the south-west corner of Clark and Jackson streets, in Chicago, and appellee was working for them. On December 6,1886, the mason work was finished, and appellee was employed, with others, in lowering certain planks which had been used by the masons for scaffolding, from the attic floor of the unfinished building, through an elevator-way, by means of a rope, to the floor below. In the performance of this duty, and at the time he was injured, appellee was using due and ordinary care. Over him, on the framework of the roof, some of the servants of the appellant were at work. Appellant had a contract for doing the fire-proofing of the building, and its servants on the frame of the roof composed a gang of three or four men, who were preparing the “centerings,” so-called, necessary to be put in place in order to enable the appellant to lay the fire-proof arches between the girders forming the frame of the roof. The centerings were a sort of platform, supported from above, built close to and under the girders, on which the tiles of the arches, flat on the under side, were laid and rested until the mortar with which they were built should harden, and on which the' workmen employed in springing the arches stood while working. The appellant had nothing to do with the iron work of the building, and the girders of the roof had been put in place by a contractor who had done the iron work. They ran north and south, were some six or seven feet apart, and, as the morning in question was frosty, they were slippery. The centering gang were working over that part of the attic floor where appellee was at work, and Lynch, the foreman of the gang, in stepping around upon the roof girders, stepped on a short iron girder, weighing five or six hundred pounds, and loose at both ends, which was no part of the roof, and which was lying east and west across the north and south girders, which were, in that place, about as far apart as the short girder was long. Lynch called the attention of Lee, another of appellant’s workmen, to the fact of the loose girder. A few moments thereafter he ordered Lee to go below to the attic floor and tie the timber cross-pieces to a rope, by which he (Lynch) would haul them up. This order was obeyed by Lee, and when the rope was tied to one of the cross-pieces he notified Lynch to pull up. The latter at this time was standing, with the rope, on one of the girders this loose girder was resting on, and not more than three or four feet away from it. Lee, who was a witness for appellee, stated in his testimony: “As he (Ljnch) hauled away I looked up after the cross-piece, and as the cross-piece got up I seen this girder turn over on its end and drop.” This short girder, in falling, struck appellee, and inflicted upon him the injuries to recover damages for which the suit was brought.

Several grounds áre urged for the reversal of the judgment. It is claimed there is a variance between the declaration and the evidence in respect to the acts of negligence which caused the injury. The variance suggested does not seem to be of a very substantial character, but be this as it may, appellant can not now avail himself of it. It does not appear, from the record, that any claim of variance on the ground now indicated was made in the trial court, and if there made, and deemed essential, it could readily have been obviated by amendment. The failure of appellant to there object on the ground of the variance, must be regarded as a waiver of the objection. City of Elgin v. Kimball, 90 Ill. 356; Indianapolis and St. Louis Railroad Co. v. Estes, 96 id. 470; St. Clair County Benevolent Society v. Fietsam, 97 id. 474.

The main ground of alleged error is, that when appellee rested his case the Superior Court denied the motion of appellant to direct the jury to return a verdict for the defendant. The gist of the action was the alleged negligence of the defendant, through its servants, and that such negligence was the proximate cause of the injury to the plaintiff. There was evidence before the jury tending to prove both of these propositions. The foreman of appellant knew the girder was loose, and that it rested upon frosty and slippery iron supports, and whether or not it was culpable negligence, under such circumstances, to stand upon the supporting girder, and in such close proximity to the short and loose girder, and pull up timbers from below with a rope, was a proper question of fact for the determination of the jury. As the cross-piece got up to where Lynch was standing, not more than three or four feet from the girder, the girder was seen to turn on its end and fall. We are unable to say, as matter of law, it was not a legitimate inference and conclusion for a jury, from this testimony, taken in connection with the other circumstances in proof, that the timber, or the rope with which it was hauled, came in contact with the girder and caused one end of it to slide from its support. There was no error in the action of the court in refusing to take the case from the jury.

The court sustained objections to two questions asked of the witness Wight, and such refusal is assigned as error. The questions were as follows: “Placing the centering boards in position, what effect would it have as to any mass or plank resting on top of the beams, with reference to its reaching or falling below ?” and, “When the centering beams are in position, can anything fall from above down below ?” Such ruling was not erroneous, and for two sufficient reasons. In the first place, the rule is, that as to matters which do not so far partake of the nature of a science as to require a course of previous habit or study in order to an attainment of a knowledge of them, the opinions of witnesses, though experts, are not admissible as evidence. (Pennsylvania Co. v. Conlan, 101 Ill. 93, and authorities there cited.) Besides this, the negligence here in issue was not in the mere act of placing the centering boards in position, but was in the alleged negligent manner in which the servants of appellant proceeded in getting ready for the performance of such work.

It is not claimed it was error to refuse the last instruction in the series asked by appellant, but it is insisted the modification made therein by the court rendered it erroneous. The modification made was the insertion of the word “sufficient.” The conclusion of the instruction, as given to the j ary, was as follows: “If the fact of negligence be doubtful, from the evidence, the defendant is entitled to the verdict. The fact of an accident having occurred, is not, of itself, sufficient evidence of negligence.” It would seem, the fact the girder did fall affords some evidence it was lying in such condition and position upon the beams as that it was liable to be precipitated below, where appellee and others were at work, if a moving body came in contact with it. The servants of appellant knew it was there, and were fully advised it was loose, and that the irons which supported it were frosty and slippery, and we see no good reason why the fact it actually fell should have been wholly excluded from the jury in the consideration of the question of the alleged negligence. The court told the jury, in substance, that the fact it fell did not establish negligence, but, beyond that, left the question of negligence to be determined by the jury upon all the evidence before them. We are unable to see that appellant has any cause of complaint in this action of the court.

We find no error in the record, and the judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justíce Magruber

text:
    The Mobile and Ohio Railroad Company v. William Davis.

      Filed at Mt.Vernon

      October 31, 1889.

      1. Negligence—railway signal at highway crossing—and herein, what is a “highway.” Section 6 of the “Act in relation to fencing and operating railroads, ”, approved March 31,1874, requires the ringing of a bell or blowing of a whistle at the distance of “eighty rods from the place where the railroad crosses or intersects any public highway,” etc.: Held, the words “any public highway,” as here used, are not limited in their signification to the common public roads in the country, but their meaning is broad enough to include streets and roads in incorporated cities and towns.
    2. The term “highway” is generic, inclusive of all public ways, and means a public road, which every person, whether an inhabitant or a stranger, has a right to use for passage and traffic. The term will, therefore, include streets in cities, footways or sidewalks, turnpikes, plank-roads and bridges.
    3. Same—negligence as a question of fact. Whether a railway company failed to ring a bell or blow a whistle when approaching a highway crossing, at which place a train collided with the plaintiff’s team, and whether the plaintiff was guilty of a want of ordinary care in attempting to pass over the track, are questions of fact for the jury.
    4. New tbial—attorney associating with a juror. Pending the trial of a cause, after the evidence was closed, but before argument to the jury, the attorney for the plaintiff (who was the prevailing party) was seen drinking and “clinking” glasses, in a public saloon, with one of the jurors trying the case. So far as appeared, the only subject of conversation between the attorney and the juror, on the occasion, was some old litigation in which the juror’s wife had been involved, and which had just then been compromised, the same attorney having represented the adverse interest: Held, the mere matter of such assqciation, under the circumstances, between the juror and the attorney was improper, and was ground for reversal of the judgment.
    Appeal from the Appellate Court for the Fourth District;— heard, in that court on appeal from the Circuit Court of Monroe county; the Hon. Geoege W. Wall, Judge, presiding.

      Messrs. Lansden & Leek, for the appellant:
    The words “public highway,” in the statute requiring the sounding of a bell or whistle on a train approaching a crossing, refer only to public roads in the country, and not to streets in the limits of cities and villages. Cleaves v. Jordan, 34 Me. 9; Waterford v. Oxford Co. 59 id. 450; Railroad Co. v. State, 51 Miss. 137. See, also, Starr & Curtis’ Stat. chap. 114, secs. 67, 68, 71, 99.
    Appellee was guilty of such contributory negligence as to bar a recovery. (Sieves v. Railroad Co. 18 N. Y. 425.) It was his duty to look and listen for a train before attempting to "pass over a crossing. Railroad Co. v. Jacobs, 63 Ill. 178; Railway Co. v. Hatch, 79 id. 137; Railroad Co. v. Harwood, 80 id. 88; Railroad Co. v. Damerell, 81 id. 450; Railway Co. v. Dimich, 96 id. 42.
    The settled doctrine of the courts of this State, supported by a long line of unbroken authority, is, that it is the duty of a person about to cross a railroad track to look and listen for approaching trains, and the neglect of that duty is such gross negligence as precludes all right of recovery in case of collision. Railroad Co. v. Still, 19 Ill. 499; Railroad Co. v. Dill, 22 id. 265; Railroad Co. v. Gretzner, 46 id. 83; Railroad Co. v. Riley, 47 id. 515; Railroad Co. v. Manly, 58 id. 300; Railroad Co. v. Jacobs, 63 id. 179; Railroad Co. v. Lee, 68 id. 576; Railroad Co. v. Jones, 76 id. 312; Railroad Co. v. Bell, 70 id. 102; Railroad Co. v. VanPatten, 64 id. 516 ; Railroad Co. v. Damerell, 81 id. 455; Railroad Co. v. Hicks, 13 Bradw. 407.
    The court should have granted a new trial on the ground of the conduct of appellee’s counsel with the juror. Knight v. Freeport, 13 Mass. 218; Cottle v. Cottle, 2 Greenl. 140; Lyons v. Lawrence, 12 Bradw. 531; Mantin v. Morelock, 32 Ill. 485.
    Mr. William Winkelman, for the appellee:
    The statute (chap. 131, sec. 1, subdiv. 16,) provides, that the word “highway,” “road” or “street” “may include any road laid out by authority of the United States, or of this State, or of any town or county of this State,” etc. Again, we contend that a public street in a town or city, open for pedestrians, is a public highway as much as a highway in the country.
    In Shearman & Bedfield on Negligence, (p. 408, sec. 343,) the authors say: “The term ‘highway’ is a generic phrase, inclusive of all public ways, it being defined to mean a public road or thoroughfare which every person has a right to use. The term will, therefore, include streets in cities,” etc. See the many authorities cited in note.
    The Supreme Court of Indiana says: “A public street in a town is a public highway.” State v. Mathis, 21 Ind. 278.
    The Supreme Court of Michigan says: “The streets of Detroit are public highways, like all other roads.” City of Detroit v. Blackly, 21 Mich. 84.
    The Supreme Court of Massachusetts says: “In the statute of 1786, (sec. 7,) giving double damages for an injury received through a defect in any highway, the term ‘highway’ includes townway.” Jones v. Inhabitants of Andover, 6 Pick. 58 ; Davis v. Smith, 130 Mass. 113; Railroad Co. v. Dunn, 78 Ill. 197.
    To the last point made by counsel for appellant, upon which they ask reversal of the judgment, we deem it a sufficient answer to say, that it appears from the affidavits of Winkel-man, Allen and Burroughs, that the act of touching glasses was by mere accident. (Hilliard on New Trials, p. 202, chap. 10, sec. 6.) And if the act done was a mere accident or inadvertence, without any improper design, and if it can be safely assumed that it had no improper influence on the mind of the juror, there can be no just or reasonable ground to disturb the verdict. (Vaughn v. Dotson, 2 Swan. 348.) Accordingly, it has been held that the casual treating of a juror by the prevailing party, or one in his employ, without any design to bias or influence him, where there is no cause to believe that the juror was influenced by the occurrence, is not a ground for a new trial. Hilliard on New Trials, p. 204, chap. 10, sec. 8.
   Mr. Justíce Magruber

delivered the opinion of the Court:

This is an action on the case, brought in the Circuit Court of Monroe County by the appellee against the appellant Company, to recover damages for personal injuries, and for injuries to personal property, as hereafter stated. The trial below resulted in verdict and judgment in favor of the plaintiff, and the Appellate Court has affirmed the judgment of the Circuit Court. The case is brought here by appeal from the Appellate Court.

The declaration avers in substance, that, on June 15,1886, the plaintiff was riding in his wagon drawn by a pair of mules along the public highway from the town of Columbia in Monroe County to the town of Centerville in St. Clair County, and, while crossing the railway track of the defendant at the point, where such track crosses the highway in the incorporated town of Columbia, his team was struck by a passing train; that plaintiff was thrown from the wagon and received severe bodily injury; that the wagon was so broken and injured as to be useless; that one of the mules was killed, and the other had one of his legs broken, etc.;" that plaintiff was using all reasonable care and diligence to avoid an accident; that the injuries resulted from the negligence and carelessness of the servants of the defendant in control of the locomotive and train, in not ringing a bell or blowing a whistle at a distance of at least eighty rods from the crossing of the highway, and in not continuing such ringing or whistling until the highway was reached.

First, it is claimed, that the charge of a failure to ring a bell or blow a whistle is not sustained by the evidence, and that the plaintiff was guilty of a want of ordinary care. These are questions of fact, and we cannot consider them.

Second, the trial court was requested by the defendant to instruct the jury, that section 6 of an “Act in relation to fencing and operating railroads,” approved March 31,1874, (Starr & Cur. Rev. Stat. chap. 114, sec. 68, page 1927) does not apply to the crossings of railroads with streets within the corporate limits of a city or town, “and that, if it should appear from the evidence that the Centerville road is a street in the town of Columbia, and that the crossing in question is within its corporate limits, then this statute has no application to the case at bar.” The court refused to give the instruction, and such refusal is assigned as error.

Section 6 is as follows: “Every railroad corporation shall cause a bell of at least thirty pounds’ weight and a steam whistle (to be) placed and kept on each locomotive engine, and shall cause the same to be rung or whistled by the engineer or fireman, at the distance of at least eighty rods from the place where the railroad crosses or intersects any public highway, and shall be kept ringing or whistling until such highway is reached.”

The words, "any public highway,” as here used, are not limited, in their signification, to the common public roads in the country, but their meaning is broad enough to include streets and roads in incorporated cities and towns.

Shearman and Bedfield, in their work on the Law of Negligence (vol. 2, sec. 333, (4th ed.)), say: “The term ‘highway’ is generic, inclusive of all public ways, and means a public road which every person, whether an inhabitant or a stranger, has a right to use for passage and traffic. The term will, therefore, include streets in cities, footways or sidewalks, turnpikes, plank-roads and bridges.” The statement of the text writers is sustained by numerous authorities. To the same effect, also, are State v. Mathis, 21 Ind. 278; City of Detroit v. Blackly, 21 Mich. 84; Jones v. Inhabitants of Andover, 6 Pick. 58; Davis v. Smith, 130 Mass. 113; State v. Wilkinson, 2 Vt. 480. In the latter case the Supreme Court of Vermont say: “A common street and public highway are the same/and any way, which is common to all the people, may be called a highway.”

In St. L., V. & T. H. R. R. Co. v. Dunn, 78 Ill. 197, the precise question here discussed did not arise, but it was held that the failure to ring a bell or blow a whistle, as required by this statute, was an act of negligence on the part of a railroad company when one of its trains was crossing a street in the city of East St. Louis. In paragraph 16 of section 1 of “An Act to revise the law in relation to the construction of the statutes,” approved March 5, 1874, (Starr & Cur. Stat. chap. 131, page 2331), occurs the following definition: “The word ‘highway,’ ‘road’ or ‘street’ may include any road laid out by the authority of the United States, or of this State, or of any town or county of this State, and all bridges upon the same.” In the case at bar, the Centerville road, where the appellee and his property were injured, appears to have been laid out by the authority of the town of Columbia, and is therefore embraced within the statutory meaning of the word “highway.”

The case in Mississippi, to which counsel refers us, is opposed to the weight of authority upon this subject. The eases cited from Maine are based upon a statute in that State, which restricts the meaning of the word “highway” to county roads and “county ways,” and excludes “town ways.” These cases have no application here.

We are of the opinion that there was no error in refusing the instruction asked for.

Third, the next error assigned is the refusal of the Circuit Court to grant a new trial for reasons set forth in certain affidavits presented in support of the motion for a new trial. The following are the affidavits:

“Personally appeared before me, the undersigned, clerk of the circuit court of Monroe county, Charles E. Weller, who, being duly sworn, says that he acted as stenographer in reporting the testimony in the above case; that upon the adjournment of the court, at about half-past nine in the evening, at the conclusion of the testimony in the case, he stepped into a saloon immediately opposite the court house in the town of Waterloo, and there saw the plaintiff’s attorney, William Win-kelman, standing at the counter of the saloon with one of the jurors engaged in trying the said cause, Thomas Allen by name, knocking their glasses together as though in token of pledge, and then draining their glasses of beer.”
“W. H. Horine, Jr., of lawful age, being duly sworn, says that he is the State’s attorney for said county of Monroe; that whilst the trial of the above case was in progress, and after the conclusion of the testimony in the case, but before the closing arguments in said cause, about 9 :30 P. M. of March 29, 1888, he saw counsel for plaintiff in said cause, William Winkelman, in the saloon on the ground floor of the City Hotel, opposite the court house, in the town of Waterloo, drinking beer with one of the jurors then engaged in trying the above cause, Thomas Allen by name, knocking their glasses together as if drinking to each other’s health, or otherwise pledging themselves.”
“Albert J. Kunster, being first duly sworn, of lawful age, says he is the proprietor of the drug store adjoining the City Hotel, in Waterloo, opposite the court house; that about half-past nine P. M., of March 29, 1888, he was in the saloon attached to said hotel, and saw William Winkelman, the attorney, and Thomas Allen, a juror, standing together at the saloon counter, facing'each other, and clinking together their glasses of beer and talking confidentially together.”
‘ William Winkelman, being sworn, testified: “After the adjournment of court I went to Bickelhaupt’s saloon. Werner, the attorney for the railroad • company, the State’s attorney, ex-sheriff Wilson, and some fifteen or twenty other persons, were in the saloon. Some one called me to take a drink; I thought it was ex-sheriff Wilson. I was standing close to the counter, and near me was Thomas Allen. We took the drink, and, turning around, I spoke to Allen on the suit with his wife and Mrs. Bebenock, which had theretofore been compromised. We spoke in a loud voice. We never mentioned, the suit of Davis against the Mobile and Ohio Bailroad Company. This' was in the evening, after the adjournment of court.”

Thomas Allen, being sworn, testified: “I was in Bickel-haupt’s saloon. Some man called me—I think it was Wilson— to take a drink. I was standing near Mr. Winkelman, who also drank. There was a touching of glasses, and Mr. Winkel-man being nearest to me, we touched glasses, and then spoke about the suit between my wife and Mrs. Bebenock, which had that day been settled. Not a word was said in that conversation or any other about the suit of Davis against the railroad company. Mr. Winkelman was Mrs. Bebenock’s lawyer in the suit with my wife. All this we spoke in the saloon. It was in a loud voice, so that it could he heard. I think some fifteen or twenty persons were in the saloon at the time we had this drink. The railroad attorney and his witnesses at court— some two or three of them—were standing close to the counter, —on the south-east corner of the counter,—and could have heard the conversation.”

W. S. Burroughs, being sworn, testified: “I am the sheriff of this county. After court had adjourned I walked over to Bickelhaupt’s saloon; found several jurors there; was standing close to Mr. Winkelman and Mr. Allen. I invited three or four persons to drink with me, and seeing Winkelman and Allen there, I asked them also. After the drinking I saw Win-kelman and Allen were having some conversation in an ordinary tone of voice, and I think it was the old case of Allen against Bebenock. I don’t think they referred in any way to the Davis case. In asking Winkelman and Allen to drink with us, I had no purpose in getting them together, and the matter was not from any design on my part. There was nothing unusual in what occurred at the bar.”

It appears from these affidavits that the wife of Allen, one of the jurymen, had for some time been engaged in litigation with one Mrs. Bebenock; that the attorney of Mrs. Bebenock in that litigation was also the attorney of the plaintiff in the suit at bar; that the case of Allen vs. Eebenock was settled and compromised during the trial of the present suit and on that day of the trial, on which the evidence was closed, the next step being the argument of the cause before the jury; that, on the evening of the day, on which such compromise was effected, the husband of one of the parties, while acting as juror in the present case, and the attorney of the other party, while acting as counsel in the trial of the present case, were drinking together and talking about the litigation so compromised.

We cannot know, that the juror, Allen, may not have been influenced by the circumstances detailed in these affidavits. His wife’s “old case” against Mrs. Eebenock had been settled that very day, and, while we do not know what the terms of settlement were, yet they must be presumed to have been satisfactory to Allen, as he was “clinking” glasses in a friendly way with the attorney of his wife’s opponent. Why was the compromise of this “old case” made while the present suit was on trial? It was highly improper for the juror, Allen, and the attorney of the pr'esent appellee, to be drinking together and talking about that old litigation just then compromised, while they were engaged, the one as juror and the other as attorney, in the trial of the case at bar. Their conduct was calculated to create the impression, that the compromise of the “old case” might have some relation to, or bearing upon, the result of the case then pending.

The jury box must be free from improper influences. Any association of any kind by either party, or the counsel of either party, to a cause on trial, with any one of the jurymen, is calculated to give rise to suspicion and uncertainty as to the fairness of the verdict. If the administration of justice is to be kept pure and above reproach, every appearance of a want of impartiality on the part of juries must be discountenanced.

In the present case, Davis and the Eailroad Company were each entitled to a fair, and impartial trial of the controversy between them. The settlement of a long pending law suit may have inspired Allen with such a feeling of gratitude as to bias his judgment as a juror. The sense of obligation for a favor received is a subtle emotion, and often unconsciously dominates the faculties. It is better that a juryman rest under no obligation, nor under any apparent obligation, to either of the parties, upon whose rights he is called upon to adjudicate.

In Bonnet v. Glattfeldt, 120 Ill. 166, we went just as far as our sense of duty would permit us to go in overlooking such an appearance of evil as is presented by the present record. The warning, which we there gave, seems to have gone unheeded. In that case we said: “There was clear impropriety in this association of the party with the juror. Such appearance is calculated to impair public confidence in the proper administration of the law, which it is so desirable to have prevail, and should always be avoided. In Stafford v. City of Oskaloosa, 57 Iowa, 748, there was reversal of a judgment solely because of mere association, during the time of the trial, of the counsel of the prevailing party with one of the jurors, where there had been nothing said respecting the case, and the court was satisfied that nothing wrongful was designed or attempted. It was well said in Bradbury v. Coney, 62 Me. 223, in speaking upon the subject of the interference by a party with jurymen while a cause is pending: "‘In the trial of a cause, the appearance of evil should be as much avoided as evil itself.’ ” (See also Martin v. Morelock, 32 Ill. 485; Lyons v. Lawrence, 12 Bradw. 531).

In the case of Knight v. Inhabitants of Freeport, 13 Mass. 218, the court says: “Too much care and precaution cannot be used to preserve the purity of jury trials. The attempt to influence the jurors in this case was grossly improper, and ought to be discountenanced. It is not necessary to show that the mind of the juror thus tampered with was influenced by this attempt. Perhaps it is not in his power to say whether he was influenced or not. If he was, there was sufficient cause to set aside the verdict; and if he was not, and the party who has gained the verdict has a good cause, he will still he entitled to a verdict upon another trial. We cannot he too strict in guarding trials by jury from improper influence. This strictness is necessary to give due confidence to parties in the results of their causes; and every one ought to know that for any, even the least, intermeddling with jurors, a verdict will always be set aside.”

In Cottle v. Cottle, 6 Greenl. 140, the Supreme Court of Maine, in speaking upon this subject, says: “It is insisted that the juror was not in fact influenced, and that justice has been done between the parties. It may be so; but it may be useful to the party to learn that a good cause may be injured, but cannot be promoted, by conduct of this sort, and to the public generally, to know that it will be tolerated in no case whatever.”

We think that the Circuit Court erred in refusing to grant the new trial, and accordingly the judgments of the Appellate and Circuit Courts are reversed, and the cause is remanded to the Circuit Court.

Judgment reversed.