text:
    Chicago, Burlington and Quincy Railroad Company v. Samuel Warner.

      Filed at Ottawa January 23, 1884.

      1. Negligence — contributory negligence, as, in uncoupling cars. ■Where a railway company has in use on its road, freight cars without end ladders, steps and handles, which adjuncts are necessary in coupling or uncoupling while the ears are in motion, and a freight conductor is cognizant of this fact, it is clearly his duty, before attempting to pass from the side to the end of the ear for the purpose of uncoupling it, to ascertain whether it is one of that kind, and if he finds it is, it is negligence on his part to attempt to make the uncoupling while the train is in motion.
    2. So in an action by such conductor against the company, to recover for a personal injury received while attempting to uncouple a car having no ladder or steps or handles at its end, the defendant asked an instruction “that it was the duty of the plaintiff, before attempting to uncouple the car in question, to use ordinary and reasonable care to ascertain whether it was safe to do so or not while the train was in motion; and if the jury believe, from the evidence, that it was not safe for the plaintiff to uncouple said ear at the time he attempted it, and the plaintiff knew, or might by the exercise of ordinary care have known, that it was not safe to attempt it, then” he could not recover: I-Ield, that the instruction was proper, and that it was error to refuse it as asked.
    3. Same—measure of damages—by whom, to be determined. In cases of negligence resulting in the infliction of a personal injury, the damages, to a large extent, rest in the discretion of the jury. About all the court can do is to confine the jury in their assessment 'to such‘damages ns are shown by the evidence to result necessarily from the injury complained of.
    4. Evidence—facts not necessary to be proven. No proof is required of facts which everybody is presumed to know. When such facts become material, it is the duty of courts and jurors to take notice of them, and act upon them without proof.
    5. Satisfactory proof of a given act affords at least prima facie evidence of the ordinary and probable consequences of such act, and is sufficient until the presumption is overcome by other evidence.
    6. So in a suit to recover damages for the loss of an arm, etc., no proof to show that such loss would impair the party’s ability to pursue his ordinary business is necessary, upon which to base an instruction relating to damages growing out of the want of such ability.

      7. And proof of the crushing and mangling of a plaintiff’s arm from the fingers up to within a few inches of the shoulder, and of its subsequent amputation at the shoulder, is sufficient evidence of such degree of pain on his parij as to make it a proper element to be considered by the jury in estimating damages.
    8. Addesations and proofs—the plaintiff in an action ex delicto not bound to prove all the grounds of action alleged. In actions ex delicto it is not always necessary to a recovery by the plaintiff that he shall prove all the averments of his declaration. It is sufficient to prove enough of them to show' a cause of action. Therefore, in a case against a railroad company to recover damages for a personal injury, where several acts and omissions of duty were charged as negligence and the’ cause of the injury, it was held, that a failure to prove each and all of the alleged acts and omissions did not constitute a variance.
    9. Instruction—as leaving question of law to jury. An instruction in an action to recover for a personal injury resulting in the loss of an arm, etc., informed the jury that in case they found for the plaintiff it would be1 proper to consider certain things, and “all damages, present and future, which, from the evidence, can be treated as the necessary and direct result of the injury eomiilained of:” Held, that the instruction was not subject to the objection of leaving a question of law to the jury.
    10. Instructions should be based rrpon evidence relating to the general or some particular aspect of the ease, and it is the duty of the court to determine in the first place whether there-is any evidence relating to the hypothesis assumed by a particular instruction. So if there is evidence tending to prove a fact, an instruction that if such fact is not proved the verdict should be a certain way, is erroneous, as not being based on evidence, and so submitting a question of law to the jury.
    11. Same—giving undue prominence to subordinate facts. One of the main issues in an action against a railroad company was, whether the injury to the plaintiff was caused by the negligence of the company in its failure to furnish a car in question with proper steps or an end ladder. An instruction was asked, that if the jury believed, from the evidence, that the ifiaintiff bad, before the trial, made written statements of the cause of the accident to an agent of the defendant, wherein he attributed the accident to the manner in which the engineer slacked up the train, and the way in which the car door slid, as well as to the absence of a step, and that such statements were true, and that the accident could not have happened if the engineer had not slacked up as he did, the plaintiff could not recover. It was held, the instruction was properly refused, as it gave undue prominence to part of the evidence, and tended to divert the attention of the jury from the main issue, and cause them to decide the whole case upon a mere subordinate issue.
    12. Law and fact—of which character. Whether there is any evidence upon a given point or issue, or not, is purely a question of law, to be determined by the court, and it is not proper to submit such question to the jury.
    13. Error—whether it should reverse. If a reviewing court can see that a case has been fairly tried, and that the judgment is clearly right upon .the facts or merits, and that another trial would result the same way, it will not reverse because of an error in the giving or refusing of an instruction. But when the case is a close one on the facts, and the evidence is about evenly balanced, a reversal will be had for any substantial error in the trial court on a material question that may have turned the scale in favor of the successful party.
    14. Practice—how to question sufficiency of declaration. By pleading the general issue the defendant admits the sufficiency of the declaration, which he can not afterward question by. motion to exclude the evidence under it. To question the sufficiency of a declaration the defendant should demur to it, or move in arrest of judgment.
    Appeal from the Appellate' Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Mr. Melville W. Fuller, for the appellant:
    Plaintiff’s third instruction is open to three fatal objections :
    First—There was no evidence that the loss of his arm did, or would, impair his ability to pursue his business. Illinois Central R. R. Co. v. Weldon, 52 Ill. 290; Regan v. Railroad Co. 51 Wis. 599.
    Second—There was no evidence of the extent of the pain the plaintiff suffered, other than the loss of his arm. Pain, as an element of damage, could not be inferred from this fact.
    Third—The third objection relates'to this clause: “And all damages, present and future, which, from the evidence, can he treated as the necessary and direct result of the injury,” etc. There "was no evidence on which to base this part of the charge,—none of doctor’s or nurse’s bills incurred, or of any other expense. Again, it leaves a question of law to the jury. It is for the court to judge what are the elements of damages.

      The eases, Illinois Central R. R. Co. v. Read, 37 Ill. 434, Whalen v. Railroad Co. 60 Mo. 323, and Morris v. Chicago, Burlington and Quincy R. R. Co. 45 Iowa, 45, have no application here.
    The plaintiff did not adduce evidence to prove his case as laid in the declaration, and the motion to exclude the evidence should have been sustained. Chicago and Northwestern R. R. Co. v. Sweet, 45 Ill. 197.
    The declaration was fatally defective, and the motion to exclude the evidence should have been sustained. Buzzell v. Laconia, 48 Me. 113; Williams v. Clough, 3 H. & N. 258.
    "When a plaintiff alleges certain acts as constituting negligence, he can not rely on any other acts to establish his case. Railroad Co. v. Troesch, 68 Ill. 545; Waldhier v. Railroad Co. 71 Mo. 514; Pierce v. Railroad Co. 72 id. 414.
    The master is not bound to. throw away his machinery because there may be others “better calculated to insure safety. ” L. and N. R. R. Co. v. Orr, 8 Am. Ry. Cases, 94; Lake Shore and Michigan Southern R. R. Co. v. McCormick, 74 Ind. 440; Hayden v. Railroad Co. 29 Conn. 549; Morris v. Gleason, 1 Bradw. 510; Railroad Co. v. Asbury, 84 Ill. 429; Railroad Co. v. Gildersleeve, 33 Mich. 133; Salters v. Railroad Co. 3 Hun, 338; 2 Thompson on Negligence, 983-986.
    The rule is different in respect to liability to passengers. Smith v. New York and Hudson River R. R. Co. 19 N. T. 127; Salters v. Canal Co. 3 Hun, 338; Castello v. Railroad Co. 65 Barb. 92.
    Plaintiff knew that the defendant used cars without steps or handles, and before attempting to uncouple he should have ascertained whether the ear had them or not.
    Mr.-Thomas Cbatty, and Mr. W. S. Johnson, for the appellee :
    Proof of the loss of an arm is proof that plaintiff’s ability to pursue his business was impaired, and that he suffered pain. Illinois Central R. R. Co.v. Read, 37 Ill. 484; Morris v. Chicago, Burlington and Quincy R. R. Co. 45 Iowa, 29; Whalen v. Railroad Co. 60 Mo. 323; Chicago, Rock Island and Pacific R. R. Co. v. Otto, 52 Ill. 416; Chicago v. Scholten, 75 id. 468; Chicago and Alton R. R. Co. v. Bonfield, 104 id. 225.
    There was evidence of plaintiff’s age at the time of the injury, and of 'his business then and now,—evidence of his present and future disability by the loss of his arm. Peoria Ins. Co. v. Anapow, 45 Ill. 87.
    The Appellate Court having affirmed the judgment of the circuit court, this court will assume that all the material allegations of the declaration are fully and conclusively established. Chicago and Eastern R. R. Co. v. Rung, 104 Ill. 645; Chicago, Burlington and Quincy R. R. Co. v. Harwood, 90 id. 426; Chicago and Alton R. R. Co. v. Bonfield, 104 id. 226; Indianapolis and St. Louis R. R. Co. v. Estes, 96 id. 472.
    Where the plaintiff showed that the injury was caused by the absence of steps and handles, he made out a prima facie case. Pittsburg, Cincinnati and St. Louis Ry. Co. v. Thompson, 56 Ill. 141; Eagle Packet Co. v. Defries, 94 id. 602.
    This court will not reverse for an error that does no harm. Eagle Packet Co. v. Defries, supra.
    An objection to the sufficiency of the declaration should be taken by demurrer. It is too late after going to trial. (Chicago, Burlington and Quincy R. R. Co. v. Harwood, 90 Ill. 426.) No objection being made to the introduction of the evidence, for variance or otherwise, it can not be raised in this court. Roberts v. Corby, 86 Ill. 182.

    Defendant’s fifth instruction singled out a. certain portion of the evidence, and was properly modified. Hatch v. Marsh, 71 Ill. 370; Ogden v. Kirby, 79 id. 555; Evans v. George, 80 id. 51; Martin v. Johnson, 89 id. 537.
    No error in refusing defendant’s second and fourth instructions. They do not embody the law as declared in Chicago,

      Burlington and Quincy R. R. Co. v. Gregory, 58 Ill. 283; and besides, there was no evidence on which to base them.
    The motion to exclude the evidence is in the nature of a demurrer to the evidence, and is never allowed if there is any evidence tending to prove the issues. The finding of the Appell ite Court is conclusive that there was such evidence. The same may be said in regard to the assertion that the evidence showed negligence on the part of the plaintiff.
    Where the nature of the service is such as to require that exclusive attention be fixed upon it, and that he should act with rapidity and promptness, it can not be expected the servant should always bear in mind the existence of defects. Snow v. Housatonic R. R. Co. 8 Allen, 441; Bassett v. Fish, 75 N. Y. 303; Fairbank v. Haentzche, 73 Ill. 236; Wharton on Negligence, sec. 93.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 10th of August, 1877, Samuel Warner, the appellee, brought an action on the case in the Cook circuit court, against the Chicago, Burlington and Quincy Railroad Company, the appellant, to recover damages for personal injuries received by him while in the employment of the company, and which are claimed to have been occasioned through its negligence. There was a trial on the merits in the circuit court, resulting in a verdict and judgment in favor of appellee, and against the appellant, for $5000. This judgment, on appeal to the Appellate Court for the First District, was affirmed, and the company brings the case here for review.

The accident giving rise to the present suit occurred about two o’clock in the morning of the 20th of August, 1875, at Buda, Bureau county, this State, on the main track of the company’s road. Appellee had been in the company’s service about six years,—the first four as brakeman, and the last two as freight conductor. At the time of the accident lie had charge of a freight train, and was proceeding to uncouple and detach a car therefrom, the train at the time being in motion. For this purpose, by means of steps run: ning up the side and near the end of the ear, he had climbed about half way up to the top, when, standing upon one round of the steps and holding wdth one hand to another, he threw himself round the corner of the car, expecting to get hand and foothold on similar steps on the other side, from whence he could easily have passed to the dead-wood in the center of the end of the car, where the uncoupling had to be made, hut it so happened the car in question had no such steps on it, and there being nothing there which he could take hold of, appellee lost his balance and fell between the rails of the track, the moving train passing over his body. In doing so the iron rods under the center of the brake-beam came in contact with his left arm, crushing and mangling it from the fingers up to within about four or five inches of the shoulder, where, by reason of the injury thus received, it was subsequently amputated.

The negligence with which the company is charged, and which is relied on for a recovery by appellee, is the company’s failure to provide the ear in question with end steps or ladder to he used in making couplings and uncouplings, and for other purposes. It is alleged, in substance, in each of the three counts of the declaration, that it was the duty of the defendant “to provide only properly and carefully constructed cars, with end ladders, side handles and steps thereto attached,” and that by reason of its failure to do so the injury in question occurred. A direct issue W'as formed upon this averment in the declaration by the defendant’s plea, and the same'has been conclusively settled against the appellant. It remains, therefore, to inquire what, if any, errors of law appear of record requiring a reversal.

It is first objected the court erred in giving the plaintiff’s third instruction. It is as follows:

“If, under the evidence and instructions of the court, the jury find the defendant guilty, then, in estimating the plaintiff’s damages, it will be proper for the jury to consider the effect of the injury in future upon the plaintiff, the use of his arm, and his ability to attend to his affairs generally, in pursuing any ordinary trade or calling, if the evidence shows that these will be affected in the future, and also the bodily pain and suffering he sustained, and all damages, present and future, which, from the evidence^ can be treated as the necessary and direct result of the injury complained of.”

The first two objections to this instruction, as stated in counsel’s own language, are: First, “there was no evidence that the loss of Warner’s arm did, or would, impair his ability to pursue his business, much less of the extent to which said ability would be lessened.” Second, “there was no evidence of the extent of the pain Warner had suffered, other than the loss of his arm, and that pain, as an element of damage, could not be inferred from that fact. ” The third objection goes to the language used in the concluding part of the instruction, namely, “and all damages, present and future, which, from the evidence, can be treated as the necessary and direct result of the injury complained of.” The specific objections to the use of this language are: First, “there was no evidence to base it upon;” and second, “it left a question of law to the jury.” It will be perceived these several objections, except the last, substantially amount to the same thing, and may therefore be properly considered together. The only difference in them is, that they respectively relate to separate parts of the instruction, or to distinct elements of damage contemplated by it; but they are all placed upon the same common ground, namely, that there is no evidence upon which to base the instruction.

We are unable to agree with counsel that the proof of the crushing and mangling of plaintiff’s arm from the fingers up to within a few inches of the shoulder, and of its subsequent amputation at that place, as is shown by undisputed testimony, affords no evidence of that degree of pain which would make.it a proper element to be considered by the jury in estimating the damages. The rules of evidence are but the product of human experience and common sense, and hence they never require the performance of an unnecessary or useless thing. One of the most elementary of these rules is, that no proof is required of facts which everybody is presumed to know. When such facts become material in a legal controversy, it is the duty of courts and juries to take notice of them, and act upon them without proof. It is also part of the common experience of all, that many facts are so intimately connected with and dependent upon each other that the proof of one necessarily establishes the other, or at least affords so strong a presumption of the latter’s existence that no additional proof of it will be required until such presumption is overcome by countervailing testimony. In fact the whole theory of inductive proof is but the practical application of this fundamental principle. (1 Wharton on Evidence, sec. 327, et seq.) To satisfactorily prove a given act also establishes, at least prima facie, the' ordinary and probable consequences of such act; and as pain uniformly follows the crushing of a bone or the laceration of the flesh of one in a normal condition, which is always presumed when nothing to the contrary appears, the jury in this case were fully warranted in inferring the fact of pain from the character of appellee’s injuries, which were fully shown,—hence it can not be truthfully said there was no evidence to base the instruction upon, so far as it related to the pain or suffering of appellee. Indeed, we do not think any general words of the witness, such as, “I suffered a great deal, ” “The pain was very severe,” and the like, would have marked more definitely the quantum or degree of suffering than the simple recital of the mangled condition of the arm, requiring its amputation.

But it is suggested that while some pain might be inferred from the injury itself, yet the extent of appellee’s sufferings should have been otherwise shown in order to make it an element in the assessment of damages. This position is clearly not tenable, either upon reason or authority. Where, in such case, the law permits a recovery at all, the plaintiff will be entitled to some compensation for his sufferings, whether they be much or little,' and the fact that the amount of suffering is not definitely fixed by the testimony, if, indeed, that is possible in any case, will make no difference in this respect. In all cases like the present, where a recovery is permitted at all, if there is. any evidence tending to prove the fact of pain, whether much or little, it is the right of the plaintiff to have the jury instructed, if they shall so find the fact, to take it into account in making up their verdict.

All that is here said is equally applicable to the objection, “there was no evidence that the loss of Warner’s arm did, or would, impair his ability to pursue his ordinary business,” etc. At the time of receiving the injury his business was that of railroading. He had made his way up from a brakeman to a conductor of a freight train. By reason of the accident he lost his position as an employee of the company, and it is manifest, from the loss of the arm itself, that he could not successfully, if at all, follow that business any longer, and the fact he was forced to abandon it was before the jury. That both arms are useful in all, and indispensable in most, of the avocations of life, is but a part of the common information of mankind in general, and hence it required no other proof to establish it. With these facts before the jury, it is difficult to understand by what process of reasoning the conclusion is reached there was no evidence upon which to found the instruction, so far as it related to the impairment of appellee’s ability to pursue his ordinary business by reason of the loss of his arm.

What we have already said fully applies to the first branch of the objection relating to the concluding part of the instruction, and is deemed a sufficient answer thereto.

We do .not think there is any just ground for the claim that the latter clause of the instruction left a question of law to the jury. As we understand it, it simply tells the jury in making up their verdict they should take into account all such damages, whether present or future, as are shown by the evidence to be the necessary and direct result of the injury complained of. We see nothing improper in this. It was not necessary, nor, indeed, would it have been proper, for the instruction to have gone on and attempted to enumerate the various circumstances or possible contingencies in which appellee would probably suffer loss or inconvenience by reason of the injury. Nor was it necessary for the court, unless asked to do so, to define what was meant by the term “damages.” In cases of this character the damages necessarily rest, to a large extent, in the discretion of the jury, for the law affords no measure or rule by which they may be even approximately ascertained. About all the court can do in such cases is to confine the jury, in their assessment, to such damages as are shown by the evidence to necessarily result from the injury complained of, arid that was done in this case.

It is also contended the plaintiff failed to prove his ease as laid in the declaration, and that the court therefore erred in not excluding the evidence from the jury. We do not concur in this view. The mistake of appellant on this branch of the case is in assuming that appellee bases his right of recovery exclusively upon “the original improper construction of the car.” It is true the declaration proceeds upon ■this theory, but not upon this theory alone, for, as already shown, it is expressly averred in the amended declaration, that it was the duty of the defendant “to furnish for the use of its employees properly and carefully constructed cars, with end ladders, side-handles and steps attached thereto; ” and the declaration further on expressly negatives the performance of this duty. This being so, the plaintiff was not bound at his peril to prove both branches of his case,—it was sufficient if he proved either. It is a familiar doctrine of the law, that all torts are severable, and therefore in an action ex delicto it is immaterial that all the averments of the declaration are not proved as laid,—it is sufficient if such of them as are so proved show a good cause of action. Applying this principle to the question in hand, the position of appellant is clearly not tenable.

To the suggestion the declaration was fatally defective, and the motion to exclude the evidence should therefore have been sustained, it is sufficient to say that the defendant, by pleading to the merits, admitted the sufficiency of the declaration, and it is not readily perceived how its sufficiency could be subsequently raised by a mere ■ motion to exclude the evidence from the jury. We are aware of no practice authorizing such a course. If the defendant desired to question the sufficiency of the declaration, it should have .demurred, or moved in arrest of judgment. (Chicago, Burlington and Quincy R. R. Co. v. Harwood, 90 Ill. 426; Roberts v. Corby, 86 id. 182.) Having done neither, it is unnecessary to determine whether the plaintiff was bound to aver in the declaration he had no notice of the defective construction of the car, as the declaration was clearly sufficient after verdict.

, Appellant also complains of the action of the court in re.fusing to give defendant’s fifth instruction as asked, and in modifying it, and giving it to the jury as modified. The instruction, as originally drawn, is as follows:

“If the jury believe, from the evidence, that the plaintiff, in October, 1875, and in November, 1875, made written statements of the cause of the accident in question to the division superintendent of the defendant company, and that therein he attributed the accident to the manner in which the engineer slacked up, and the way in which the car door slid, as well as to the absence of a step, and that such statements as to the cause were true, and the accident could not have happened if the engineer had not slacked up as he did, then the plaintiff can not recover under the declaration in this case, and the verdict should be not guilty.”

The.court, before giving this instruction, struck out the concluding^ words, “and the verdict should be not guilty,” and added the following: “But the court further instructs the jury, that it is for them to determine whether any statements made by the plaintiff to the division superintendent correctly set forth the cause or causes of the accident, and from all the evidence, and under the instructions of the court, determine the issues in the case.”

The instruction, as originally drawn, was properly refused. It not only gave undue prominence to certain parts of the testimony, but if given it would have tended to divert the attention of the jury from the main issue, namely, whether the injury to the plaintiff was caused by the negligence of the company in its failure to furnish the ear in question with proper steps or end ladder, and would probably have caused them to decide the whole case upon a mere subordinate issue, namely, whether the plaintiff had not made previous statements relating to that subject, inconsistent with his present testimony. An instruction having such a tendency should never be given. It is very questionable whether the instruc.tion, as given, was entirely relieved from its objectionable features in this respect, but it is very clear there is nothing in the modification of which the appellant has any just cause of complaint. Hatch v. Marsh, 71 Ill. 370; Ogden v. Kirby, 79 id. 555; Evans v. George, 80 id. 51; Martin v. Johnson, 89 id. 537.

It is also objected that the court erred in refusing to give the following instruction:

“In the absence of evidence tending to show that steps and handles are necessary to safety in coupling and uncoupling, the verdict should be not guilty. ”

This instruction was clearly erroneous, and was, therefore, properly refused. Instructions should be based upon evidence relating to the general or some particular aspect of the ease, and it is the duty of the court to determine, in the first place, whether there is any evidence relating to the hypothesis assumed by a particular instruction. If, as contemplated by the instruction in question, there was no evidence tending to show steps or end ladders were necessary to safety in coupling and uncoupling, the jury should have been told to find for the defendant, for the plaintiff’s whole case depended upon the negative of that hypothesis. On the other hand, if, in the opinion of the court, there was such evidence, it was not applicable to the case made by the proofs, and was therefore calculated to mislead. But the manifestly fatal objection to the instruction is in referring the question whether there was any evidence upon the point covered by the instruction, to the jury. That, of course, is a pure question of law, which the court alone should have determined.

In this connection it is urged, with much earnestness and apparent confidence, there was no evidence before the jury tending to show that steps or ladders at the ends of ears were necessary to safety in coupling and uncoupling. The evidence certainly tends to show that it was customary and proper to sometimes make couplings and uncouplings when trains were in motion, and for this purpose the party performing the service had, by some means or other, to pass either from the side or top of the car to the dead-wood, in the center of the end of the car, and in doing so it is manifest something was required to rest the foot on or hold by, if not both. To meet this requirement, as is shown by the evidence, some cars are provided with platforms on the'ends, while most of them at that time were furnished with something like ladder rounds, attached to the ends of the cars, bot,h at the top and bottom, those at the top being used mainly for hand hold, and those at the bottom to stand on. The former were called “handles, ” and the latter “steps.” Sometimes these rounds extended all the way up, from top to bottom, and then they are called “ladders.” It will be borne in mind the negligence complained of is the failure of the appellant to furnish either the steps, handles or ladder, and the evidence shows the car in question had none of these appliances, or any of any kind whatever. Now, when it is considered the evidence does show, or at least tends to show, that it was one of the duties of appellee, as he swears it was, to couple and uncouple cars when the train was in motion, and this could not be done with safety, if at all, without some of these appliances, or others answering a like purpose, and that in the present case there were none of any kind, and that, as appellee positively swears, by reason of their absence the injury complained of occurred, it is difficult to conceive how it can be seriously contended there was no evidence before the jury tending to show that these steps, handles or ladder were necessary. The very fact the evidence tends to show they are, or at least were at that time, in general use, is certainly some evidence they were so regarded at that time.

It is also objected that the trial court erred in refusing to give appellant’s second instruction as asked, and also in modifying it, and giving it to the jury as modified. From the proofs in this case there is little, if any, ground to doubt the appellant was using on its road other cars without end steps or ladders besides the one in question, and there is also evidence tending to show this fact was known to the appellee. Assuming that a part of the appellant’s ears then in use were of that kind, and that the appellee had knowledge of the fact, it was clearly his duty, before attempting to pass from the. side to the end of the. car in the manner he claims he did, for the purpose of .uncoupling it, tq have ascertained whether it "was one of that kind or not, and if he found it was, it certainly would have been negligence on his part to attempt to make the coupling in the manner he did. Now, with a view of directing the attention of the jury specially to this aspect of the case, appellant’s counsel asked the court to give the jury the following instruction, being the one just alluded to : ■

“The jury are instructed, as a matter of law, that it was the duty of the plaintiff, before attempting to uncouple the car in question, to use ordinary and reasonable care to ascertain whether it was safe to do so, or not, while the train was in motion; and if the jury believe, from the evidence, that it was not safe for the plaintiff to uncouple said car at the time he attempted it, and that the plaintiff knew, or might by the exercise of ordinary care have known, that it was not safe to attempt it, then the plaintiff can not recover, and the verdict should be for the defendant.”

—Which the court refused to do, but gave as a substitute for it the following:

“The jury are instructed, as a matter of law, that it was the duty of the plaintiff, in attempting to uncouple the car in question while the train was in motion, to exercise great care and caution to prevent being injured; and if the jury believe, from the evidence, that it' was not safe for the plaintiff to uncouple said car at the time he attempted it, and that the plaintiff knew, or might by the exercise of ordinary care have known, that it was not safe to attempt it, then the plaintiff can not recover, and the verdict should be for the defendant. ”

We perceive no objection to the instruction as originally asked. As drawn it would have accomplished the object for which it was prepared,—the substitute did not. The original told the jury, in plain, unequivocal terms, “it was the duty of the plaintiff, before attempting to uncouple the car in question, to use ordinary and reasonable care to ascertain whether it was safe to do so, or not, while the train was in motion. ” Now, this proposition (the leading one in the instruction, and which, under the proofs, is entirely accurate,) is not found in the substitute, nor is its equivalent. To tell the jury, as was done in the substitute, “that it was the duty of the plaintiff, in attempting to uncouple the ear while the train was in motion, to exercise great care and caution to prevent being injured,” is quite a different thing from telling them that it was his duty before attempting to uncouple the car, to use ordinary and reasonable care to ascertain whether it was safe to do so, or not, while the train was in motion. The care and diligence contemplated by the original instruction, 'on the part of the plaintiff, was required to be exercised before attempting to uncouple the par; that contemplated by the substitute, while attempting to uncouple. The two ideas are radically distinct, as will fully appear from a moment’s thought. Under the substitute, so far as the first proposition in it is concerned, the jury might very well have concluded, that however rash and grossly negligent the undertaking may have been, yet if the plaintiff used due care and caution while the coupling was being attempted, he might nevertheless recover; and conceding this view is modified by the latter branch of the instruction, still the instruction, as a whole, was sufficiently uncertain as to have misled the jury,—at any rate, it did not state the proposition of law announced by the original instruction, and can not, in any legal sense, be regarded as its equivalent.

We are of opinion the'court erred in refusing the instruction as asked, and the judgment should have been reversed by the Appellate Court for that reason. An error of this kind, as is well known, does not, and ought not, always to reverse; but every case in this respect must depend upon its own circumstances. Where the reviewing court can see the case has been fairly tried, and that the judgment is clearly right upon the facts, and that consequently another trial must necessarily result the same way, it will not reverse on the ground an erroneous instruction may have been given or a proper one has been refused. Quite a different rule prevails where the case.is a close one on the facts. In such a case, where the evidence is about evenly balanced, the reviewing court will reverse for any substantial error in the trial court on a material question, that may have turned the scale in favor of the successful party. The present case we regard as coming within this rule.

The judgment of the Appellate Court is reversed, and the •cause remanded, with directions to reverse the judgment of the circuit court and remand the cause for further proceedings in conformity with this opinion.

Judgment reversed,.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    Village of Genoa v. William P. Van Alstine.

      Filed at Ottawa January 23, 1884.

    1. Eeeob—obviated byamendment. An error in a judgment in awarding execution against an incorporated village for costs, may be obviated, after appeal or writ of error, by amendment of tbe record in the court below, and filing a transcript thereof, by leave, in the Appellate Court.
    2. Appeals—reviewing controverted questions of fact. An action to recover a penalty for the violation of a village ordinance being only a civil suit, the finding of the facts by the Appellate Court, by affirming the judgment below, is conclusive on this court. The guilt or innocence of the defendant, and w'hether sales of liquor made by him were made in good faith, under a permit, are questions of fact.
    3. Sale op liqtjobs—under /permit of municipal authorities. Where a permit to sell intoxicating liquors for medicinal purposes, etc., is granted to a druggist in pursuance of an ordinance by the authorities of an incorporated village, the village will not be permitted to insist it was not a sufficient warrant for the sale of liquors under it, in accordance with its terms. On a prosecution by the People a different question would be'presented. But a municipal corporation will not be allowed to license an act to be done, and then collect a penalty for the doing of it as for an illegal act.

      Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of DeKalb county; the Hon. Charles Kellum, Judge, presiding.
    This action was commenced by the village of Genoa against William P. VanAlstine, before a justice of the peace, to recover penalties for the sales of spirituous liquors by defendant contrary to the provisions of the village ordinance. On the trial before the justice of the peace the village recovered a judgment against defendant in the sum of $60, and costs of suit. A trial de novo was had, on the appeal of defendant, in the circuit court, where the jury found the issues for defendant. A motion for a new trial was overruled, and the court rendered judgment against the village for costs. That judgment, on appeal, was affirmed in the Appellate Court for the Second District, and the village brings the case to this court on its further appeal.
    On the trial of the appeal in the circuit court the defendant introduced in evidence a permit in the words and figures following:
    “Druggist’s Permit.

      “By authority of the village of Genoa, State of Illinois:

    “Permission is hereby given to W. P. VanAlstine, druggist, at his store in the village of Genoa, county of DeKalb, and State of Illinois, to sell spirituous liquors for medicinal, mechanical, scientific and sacramental purposes, by keeping a public record, stating when, what, and to whom, the quantity, and for what purpose the same was sold, from the 22d day of July, A. D. 1881, to the third Tuesday in April, 1882, subject to forfeiture, and under such restrictions and regulations which now are, or may be hereafter, provided by ordinance.
    “Given under the hand of the president of the board of trustees of said village, and the seal thereof, this 22d day of July, A. D. 1881.
    [L. B.]
    A. Crawford, President.

      The second of defendant’s instructions given is as follows:
    “If the jury believe, from the evidence, that the defendant had a license, or permit, from the village authorities of the village of Genoa authorizing him to sell spirituous liquors for certain purposes therein mentioned,- and that he did so sell in good faith, then such license or permit is a full and complete defence for all sales made while such license or permit was in force, provided such sales were made in good faith, and for the purposes in such license or permit mentioned. ”
    Messrs. Jones & Bishop, for the appellant:
    The permit, without showing the execution of a bond and other prerequisites named in the ordinance and the statute, was no justification. Rev. Stat. 1874, “Dram-shop act,” sec. 5; Lombard v. Cheever, 3 Gilm. 472; Spake v. People, 89 Ill. 617; Munsell v. Temple, 3 Gilm. 95.
    A valid permit can protect only for sales made in good faith in accordance with its provisions. Spake v. People, 89 Ill. 617; Schwuchow v. Chicago, 68 id. 444.
    The third instruction was to the effect that defendant had a right to sell bitters, whether intoxicating or not, if intended for a medicine, without any license. That this was error, see Wright v. People, 101 Ill. 126; Godfreidson v. People, 88 id. 248; Noecker v. People, 91 id. 494.
    Messrs. Lowell & Caknes, for the appellee:
    The objection to the permit was general, and not specific, so as to afford a chance to obviate it, and specific objections, that might have been removed by further evidence, are now too late. Swift et al. v. Whitney et al. 20 Ill. 144; Harvey v. Dunn, 89 Ill. 588.
    Appellant is estopped from denying the validity of the acts of its officers. Martel v. City of East St. Louis, 94 Ill. 67.

      The affirmance by the Appellate Court is conclusive as to the facts. Wallace v. Goold, 91 Ill. 15; Gravett et al. v. Davis, 92 id. 190; Morris v. Preston, 93 id. 215; Sconce v. Henderson et al. 102 id. 376; Fitch v. Johnson, 104 id. Ill; Edgerton et al. v. Weaver, 105 id. 43; Harzfeld v. Converse et al. id. 535 ; Eames v. Rend et al. id. 506; Indianapolis and St. Louis R. R. Co. v. Morgenstern, 106 id. 216; Leonard v. Patton, id. 99; Fitzsimmons v. Cassell, 98 id. 332.
   Mr. Justice Scott

delivered the opinion of the Court:

The objection that execution was awarded against the village for costs, has been obviated by an amendment to the record in the trial court, a transcript of which, on leave given for that purpose, was filed in the Appellate Court, which shows that part of the original judgment that awarded execution for costs was stricken out. There is now no error in the record in that respect.

Although this action is to recover penalties for the violation of a village ordinance, it is, in form, a civil action. It is apprehended the finding of facts by the Appellate Court in such a case is conclusive upon this court. It is for that reason the-point made, the verdict is against the evidence, will not be considered in this court. Whether defendant was guilty or not, as charged, under the ordinance in evidence, was purely a question of fact, and concerning which the testimony was conflicting. The judgment of the Appellate Court, in respect to that question of fact, will be regarded as conclusive.

No objection seems to have been taken to the admission in evidence of what is called a “permit,” issued to defendant under the second section of the ordinance “concerning licensing the sales of liquors. ” Having been issued by the village authorities, the village will hardly be permitted to insist it was not a sufficient warrant for the action of defendant under it. If the State were prosecuting defendant for illegal sales of intoxicating liquors, a very different question would be presented. A municipal corporation will not be allowed to license an act to be done, and then collect a penalty for the doing of it as for an illegal act. Volenti non Jit injuria. The case of Martel v. City of East St. Louis, 94 Ill. 67, is an authority in point. Whether defendant kept such a record as the ordinancé requires should be done, was made a question in the trial court. It is seen the jury, by their verdict, must have acquitted defendant of all bad faith, and as that finding has been concurred in by the only tribunal authorized by law to reinvestigate such matters, it will be understood, for the purposes of this decision, his sales were made in good faith, and not as a mere device to avoid the provisions of the ordinance that forbid the sales of intoxicating liquors.

Objections are taken to instructions numbered two, three and seven, of the series given for defendant. The second instruction is not open to the criticism made upon it. So far as it assumes to state the law applicable to the facts of the - o case, it is done with sufficient accuracy. Whether the “bitters” sold by defendant contained intoxicating liquors was fairly submitted by the third instruction as a question of fact, —at least it contained nothing calculated to mislead the jury on the real issues involved. The seventh instruction is more open to criticism than any of the series; but when it is considered in the light of the evidence, whether it was entirely accurate or not, it is by no means' clear it was hurtful to plaintiff, and especially in view of the fact the jury were instructed fully, at the instance of plaintiff, that the “permit” in evidence in no event would be any justification for any sales of liquors made by defendant after its revocation and notice to him.

No error of law appearing in the record of sufficient importance to arrant a reversal of the judgment of the Appellate Court, it must be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Kate N. Doggett, Ex’x. v. Charles H. Dill.

      Filed at Ottawa January 23, 1884.

      1. Administration—liability of estate of one partner for a partnership debt. Every partnership debt, in equity, being joint and several, the holder of the same may, in case of the death of a partner, resort, in the first instance, to the surviving partners, or to the assets of the deceased partner, as he may elect; and a failure to proceed against the surviving partners until their insolvency, is no bar to its collection from the estate of the deceased partner.
    2. Same—marshaling assets—between joint and individual creditors of an estate. Where there are individual and partnership creditors having demands against an estate, the individual creditors will have priority as to the individual assets, and partnership creditors a prior claim against firm assets; and the individual creditors will have the right to insist that no part of the separate assets shall be taken and applied in payment of firm debts until all separate debts are paid in full.
    " 3. Same—equitable jurisdiction in allowance of claims. As the probate court, in the adjustment and allowance of claims against estates of deceased persons, is invested with equitable jurisdiction, it follows that a debt or claim against a partnership firm may be allowed against the estate of a deceased member of such firm without showing the insolvency of the surviving partners, and collected of the administrator, when the rights of separate creditors of the decedent will not be prejudiced, they having priority as to the assets of the individual estate over joint creditors.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Eire Hawes, Judge, presiding.
    Messrs. Stiles & Lewis, and Mr. E. W. Pike, for the appellant :
    A partnership demand can not be proved against the individual estate of a deceased partner until the legal remedy against the partnership assets and surviving partners has been exhausted. In this State partnership obligations are strictly joint, and not several. Coates v. Preston et al. 105 Ill. 470.
    . At common law, upon the death of one of two or more joint obligors, the obligation survived, and could be enforced only against the survivors. 2 Wharton on Contracts, sec. 832; Dicey on Parties, 237; Gere v. Clark, 6 Hill, 350.
    In equity the obligation could be enforced against the estate of a deceased partner after the legal remedy against the survivors had been exhausted. Lane v. Williams, 2 Vern. 292; Jacomb v. Harwood, 2 Ves. Sr. 263.
    The rule in England finally developed into the doctrine that in equity a partnership creditor might proceed immediately against the estate of a deceased partner, without regard to whether there were partnership assets, or whether the surviving partners were solvent. Devaynes v. Noble, 1 Mer. 529; Wilkinson v. Henderson, 1 M. & K. 582; Thorp v. Jackson, 2 Y. & C. Ex. 553.
    Although the probate court has jurisdiction to allow equitable claims, yet this claim can not be ascertained on equitable principles until the legal remedies have been exhausted. That court can not adjust the equities in the first instance.
    The case of Mason v. Tiffany, 45 Ill. 392, and Silverman v. Chase, 90 id. 37, following, are based upon the doctrine that a partnership debt is joint and several. The case of Coates v. Preston, supra, has, however, settled the law in this State that such a debt is joint.
    In support of the first proposition announced, counsel referred to and commented on the following cases outside this State: Grant v. Shenton, 1 Wend. 148; Voorhis v. Childs, 17 N. Y. 354; Caldwell v. Stillman, 1 Rawle, 212; Hubble v. Perine, 3 Ohio, 287; Horsey v. Heath, 5 id. 353; Sherman v. Kreul, 42 Wis. 33; Bergwin v. Hostler, 1 Taylor, (N. C.) 124 ; Philson v. Bumpfield, 1 Brev. (S. C.) 202; Bennett v. Woolford, 15 Ga. 213; Pendleton v. Phelps, 4 Day, 476.

      Messrs. Dexter, Herrick & Allen, for the appellee:
    It is conclusively settled, in this State, that appellee could prove his claim against the estate of Doggett, in the first instance, without showing that the assets of the partnership and of the surviving partners had been exhausted. Silverman v. Chase, 90 Ill. 37; Mason v. Tiffany, 45 id. 392.
    The cases of Pahlman v. Graves, 26 Ill. 405,. and Moline Water Power Co. v. Webster, 26 id. 230, rest upon an entirely different principle. . •
    Joint creditors may have their demands allowed and satisfied out of the deceased debtor’s estate, except where it may work an injury to the separate or individual creditors, who alone can complain. McCulloch v. Dashiell, 1 H. & G. 106; Lewis v. United States, 13 N. B. 33; Ridgeway v. Clare, 9 Beav. Ill; Washburn v. Bank, 19 Vt. 278; Dean v. Phillips, 17 Ind. 406; Wisham v. Lippincott, 1 Stockt. Eq. 353.
    The probate court has jurisdiction to allow equitable claims against estates. Moore v. Rogers, 19 Ill. 347; Dixon v. Buell, 21 id. 203; Hand v. Slater, 43 id. 348; Garvin v. Stewart, 59 id. 229; In re Steele, 65 id. 322; People v. Harrison, 82 id. 84; Westbay v. Williams, 5 Bradw. 521; Armstrong v. Cooper, 11 id. 561; Freeland v. Dazey, 25 id. 296; Harris v. Douglas, 64 id. 466 ; Blanchard v. Williams, 70 id. 647; Hales v. Holland, 94 id. 494.
    That a partnership obligation is both joint and several, see, further, Morrison v. Keutz, 15 Ill. 193; Rainey v. Nance, 54 id. 29; Ladd v. Griswold, 4 Gilm. 25; Nelson v. Hill, 5 How. 127; Lewis v. United States,. 92 U. S. 618; Saunders v. Wilder, 2 Head, 577; Irby v. Graham, 46 Miss. 425; Freeman v. Stewart, 41 id. 138; McLain v. Carson, 4 Ark. 164; Weaver v. Thornburg, 15 Ind. 124; Kimball v. Whitney, id. 280; Hardy v. Overman, 36 id. 549 ; Camp v. Grant, 21 Conn. 41; Strong v. Niles, 45 id. 52; Filyan v. Laverty, 3 Ela. 72; Travis v. Tartt, 8 Ala. 577.
   Mr. Justice Craig

delivered the opinion of the Court:

William E. Doggett died April 3, 1876, testate, and Kate E. Doggett, appellant, who was named as executrix, qualified as such in the probate court of Cook county. Doggett, at the time of his death, and for many years before, was a member of the firm of Doggett, Barrett & Hills. In 1871, T. C. H. and Lucy W. Smith executed their two promissory notes for certain sums of money, payable to Charles H. Dill. The two notes, on the date of their execution, were guarantied by Doggett, Barrett & Hills, the firm name to the guaranty being executed by Doggett. No effort was made by Dill' to collect the amount due on the notes from the firm assets, or from the surviving members of the firm of Doggett, Barrett & Hills, but after the death of Doggett he presented the claim to the probate court, to be allowed against the estate of deceased. The probate court, upon the evidence introduced, allowed the claim, and the executrix appealed to the circuit court, where a second trial was had, resulting in a judgment against the estate. An appeal was then taken to the Appellate Court, where the judgment of the circuit court" was affirmed, and this record is brought here by the executrix for the purpose of reversing the judgment of the Appellate Court.

It is insisted by appellant that a partnership demand can not be allowed against the individual estate of a deceased partner until the legal remedy against the partnership assets and surviving partners has been exhausted.

In Mason v. Tiffany, 45 Ill. 392, which was a proceeding in chancery, by a creditor of a firm, to enforce payment of a firm debt against the estate of Tiffany, a deceased member of the firm, it was held, that every partnership debt being joint and several, it follows, necessarily, that resort may be had, in the first instance, for the debt, to the surviving partners, or to the assets of the deceased partner. In the decision of the ease it is said: “If it was a fact-that the surviving partners remained solvent for a long time before the assignment, and the assigned assets were sufficient to pay this claim, still these did not require the complainant to press his claim against them, the estate of the deceased partner being equally a fund on which he had. a right to rely. ” This case seems to establish the doctrine, in plain words, that a creditor, in equity, has the right, where he holds a claim against a' firm, one member of which has died, to proceed against the estate of the deceased member or the surviving partners, as he may elect.

In Silverman v. Chase, 90 Ill. 37, the same question arose, and, following the doctrine of the case last cited, it was said : “A partnership debt is joint and several, and the creditor has the right to elect whether he will proceed against the assets in the hands of the surviving partner or against the estate of the deceased partner, as held by this court in Mason v. Tiffany, 45 Ill. 392. Nor will the laches of the creditor in following the assets of the firm preclude a recovery. The creditor has the right to proceed against the estate at any time before the Statute of Limitations has run, and a failure to pursue the partnership assets can not be relied upon as a defence when suit is brought against the estate.”

These two cases would seem to be conclusive of the question presented, so far, at least, as this court is concerned, as they, in terms, decide the same question involved in the record before us, and it would not be deemed necessary to say anything moré on the question were it not for the fact that it is claimed that these eases are in conflict with prior decisions of this court, and the doctrine therein announced is not sound, and in harmony with the current of authority on the subject. We have therefore concluded to briefly refer to some of the authorities which have a bearing on the question, with the view of showing that the decisions of this court are fully sustained by the weight of authority.

Story on Partnership, sec. 362, says: “The doctrine formerly held upon this subject seems to have been, that the joint creditors had no claim whatsoever in equity against the estate of the deceased partner, except when the surviving partners were at the time, or subsequently became, insolvent or bankrupt. But that doctrine has been since overturned, and it is now held, that in equity all partnership debts are to be deemed joint and several, and consequently the joint creditors have, in all cases, the right to proceed at law against the survivors, and an election also to proceed in equity against the estate of a deceased partner, whether the survivors be insolvent or bankrupt, or not.” The same doctrine, but in different language, is declared by Story in his work on Equity Jur. sec. 676.

Collyer on Partnership, sec. 580, declares the law in the following language: “It is now established beyond contro-r versy, that in the consideration of courts of equity, a partnership debt is several as well as joint, and that upon the death of a partner a joint creditor has a right in equity to proceed immediately against the representative of the deceased partner for payment out of his separate estate, without reference to the .question whether the joint estate be solvent or insolvent, or to the state of •accounts amongst the partners. ”

Dixon on Partnership, 113, says: “When a liability exists the creditor may, at his option, either pursue his legal remedy against the survivor, or resort in equity to the estate of the deceased, and this altogether without regard to the state of the accounts between the partners themselves, or to the ability of the survivor to pay. ”

Lindley on Partnership, 1053, says: “Whatever doubt there may formerly have been upon the subject, it was clearly settled before the judicature acts, that a creditor of the firm could proceed against the estate of the deceased partner without first having recourse to the surviving partners, and without reference to the state of the accounts between them and the deceased.” See, also, Parsons on Mercantile Law, 192; Adams’ Equity, 173; Smith on Mercantile Law, 48; 3 Kent’s Com. 63, 64, and note.

From the citations made, it would seem that the law, as declared in Mason v. Tiffany, and Silverman v. Chase, supra, is fully sustained, at least by text writers of high authority, both in this country and in England. But it will not be necessary to rely alone on the text books for a solution of the question, as the decisions in England and many of the States are in harmony with the rule declared in the text books. In England, as early as 1816, in Devaynes v. Noble, 1 Mer. 529, it was decided, that in equity partnership debts are joint and several, and a creditor holding a firm debt could resort to the estate of the deceased partner for payment, without showing the insolvency of the survivor. The rule adopted in the case cited was subsequently adhered to and followed in Wilkinson v. Henderson, 1 M. & K. 582, and since the decision of these cases the doctrine there announced has been regarded as the settled law of England. In Nelson v. Hill, 5 How. 127, the Supreme Court of the United States held that the creditor of a partnerghip may, at his option, proceed at law against the surviving partner, or go in the first instance into equity against the representatives of the deceased partner,—that it was not necessary to exhaust his remedy at law against the surviving partner before proceeding in equity against the estate. In support of the rule announced, Story on Partnership, sec. 362, note 3, is cited. In a later ease, (Lewis v. United States, 2 Otto, 622,) Nelson v. Hill is cited with approval. In Camp v. Grant, 21 Conn. 41, the Supreme Court of Connecticut, in an able opinion, adopt the rule of the courts of England. In Weaver v. Thornburg, 15 Ind. 124, the question arose, and the Supreme Court of that State adopt the rule in the language of Story on Partnership, cited supra, and this decision was followed in a number of subsequent cases. (Dean v. Phillips, 17 Ind. 400; Hardy v. Over- man, 36 id. 549.) In Freeman v. Stuart, 41 Miss. 141, the question arose, and the Supreme Court of that State held, in equity all partnership debts are joint and several, and a creditor has the right to proceed in law against the survivor, and an election also to proceed against the separate estate of the deceased partner, whether the survivor be solvent or not. (See, also, Irby v. Graham, 46 Miss. 428, where the English rule is fully approved.) The same doctrine has been'adopted in Vermont, in Washburn v. Bank of Bellow’s Falls, 19 Vt. 278. In Tennessee, in Saunders v. Wilder, 2 Head, 579. In Arkansas, in McLain v. Carson, 4 Ark. 465. In New Jersey, in Wisham v. Lippincott, 1 Stockt. Eq. 353. In Alabama, in Travis v. Tartt, 8 Ala. 577. . In Florida, in Filyan v. Laverty, 3 Fla. 72. In Texas, in Gant v. Reed, 24 Texas, 46. In New Hampshire, in Bowker v. Smith, 48 N. H. 111. In New York and Georgia a contrary rule has been adopted, as will be found in the following cases: Lamenas v. Trustees, 11 Paige, 80; Voorhis v. Childs, 17 N. Y. 354; Bennett v. Woolford, 15 Ga. 213. Upon an examination of the New York cases, it appears that the rule there adopted was supposed to be predicated on the old English cases, and when the courts of England established the doctrine which is laid down as the law in Devaynes v. Noble, and Wilkinson v. Henderson, supra, the New York courts refused to follow the English rule, but adhered to what was supposed to be the law in England as "declared in that court prior to that time. Georgia seems to follow the New York rule. In a late case in Wisconsin, (Sherman v. Kreul, 42 Wis. 33,) the Supreme Court say: “We are disposed to adopt the New York rule, that in order to recover against the administrators the plaintiff should allege and show that the surviving partner is insolvent.” It is also claimed by appellant that the New York rule has been adopted in North and South Carolina, Ohio and Pennsylvania; but without stopping to determine precisely what the rule of the courts of these States may be, we are satisfied that the decided weight of authority is in harmony with the rule adopted in this State, and we are not inclined to change the rule heretofore adopted in this State, and follow the doctrine established- by the courts of New York and Georgia, although.we fully recognize the great ability of those courts. . .

It is also claimed that Silverman v. Chase is in conflict with Moline Water Power and Manf. Co. v. Webster, 26 Ill. 233, and Pahlman v. Graves, id. 405. This position is, in our judgment, based upon a misapprehension of those cases. In those cases there was a controversy between partnership and individual creditors, and the principle of marshaling assets was appljed, as it should have been. Where there are individual creditors and partnership creditors, there is no doubt in regard to the law that all individual creditors, have a prior claim against the individual assets, and partnership creditors have a prior claim against, firm assets, and an individual creditor would have the right to insist that no part of the separate assets should be taken and applied in payment of firm debts until all separate debts had been paid in full. This familiar rule was applied in the two cases referred to, and also in the case of Ladd v. Griswold, 4 Gilm. 25. But there is no contest between individual and partnership creditors here, and hence, the doctrine of marshaling assets does not apply. In this case no .claims had. been presented or allowed against the estate, of any character, except the one in controversy, and no individual creditor is resisting the allowance of the claim.

But independent of the authorities, we are satisfied that the rule holding the estate of a deceased partner- primarily liable in equity, is sound in principle. Doggett, in his lifetime, was individually liable for this debt, and if he had been sued, and a judgment obtained against him, any of his individual property would have been liable to be taken and sold in satisfaction of the debt. . It is true, if he had been sued at lav? in his lifetime, it would have been necessary to join his partners as defendants in the action; but after judgment, it was not necessary to exhaust the partnership assets before individual property could be taken, but the creditor could resort to such property in the first instance, if he saw proper. Did the death of Doggett in any manner change the liability which existed on this contract before his death ? We think not. The liability continued as before, but the remedy to enforce that liability was changed from a court of law to a court exercising equitable powers. Before his death the liability could only be enforced by a joint action against Doggett and his partners; after his death the liability continued, but could only be enforced in the probate court, which, in the allowance of claims, exercises equitable powers. The death of a debtor may extinguish a legal remedy on a joint contract, but we are not aware that it has ever, been held that the death of a debtor could extinguish the debt or discharge the estate of the deceased.'

In conclusion, we are satisfied, under the facts as disclosed by this record, appellee’s claim was a proper one to be allowed against the estate of the deceased, and that it was properly allowed by the probate court.

The judgment of the Appellate Court will therefore be affirmed.

Judgment affirmed.

Mr. Justice Walker : If the doctrine of this opinion is to

be applied in cases where there are individual creditors of the deceased partner, I dissent.


author: Mr. Justice Walker

text:
    Robert Chappell v. J. T. McKnight.

      Filed at Ottawa January 23, 1884.

    1. Exeoutob—must qualify, in order to execute power of sale. Executors who fail or refuse to qualify and take out letters testamentary, can not execute a power given them by the will to sell real estate of the testator, and thereby bind the heirs or devisees.
    2. Statute oe Ebauds—sale of land by an agent. To make a sale of land by an agent of the owner valid under the Statute of Erauds, the contract must be in writing, signed by the agent, under a written authority from the owner, signed by such owner.
    3. Same—authority to agent by telegraph. Where an owner of land, on being notified of an offer to purchase, and learning all the facts, sends a telegram to his agent to accept the offer and make the sale, he will be bound by a contract of sale made by his agent, as directed.
    1. Vend olí and eubchaseb—purchaser from agent of one of several owners—of his rights. Where one- purchases the entire title of a tract of land from an agent, who has authority to sell from only one of its several owners, he can not be compelled to receive a part of the title, but he may elect and compel a conveyance for the undivided part which the agent was authorized to sell.
    5. Same—right of purchaser to possession—and herein, of purchase from agent of one of several owners. The mere purchase of land does not authorize the purchaser to enter into possession without license from the seller. Such license may be express, or implied from circumstances. An agreement or covenant to convey the title of land at some future day, gives the purchaser no right to possession.
    6. A tract of land belonging to ten heirs was sold by an agent having authority only from one of the heirs, and the purchaser entered into possession. On ejectment against him by a subsequent grantee of all the heirs, he contended that being lawfully in possession, no recovery could be had: Held, that his possession was not rightful, and that a recovery of the possession by the plaintiff was right.
    7. Same—when an equitable title accrues to the purchaser. A mere contract or obligation to convey land at a future time, on the purchaser performing certain acts, does not create an equitable title in such purchaser. It is only when he performs all acts necessary to entitle him to a deed, that he has an equitable title, which is one that a court of equity will enforce.

      8. Agency—of the good faith required of an agent—the case of a sale of land. A party being desirous of purchasing a tract of land, made an offer to tbe agents of tbe owner, wbicb was reported to the principal, but before any bargain was made a higher price was offered to the agent, which he reported by telegram. On learning this fact, the first party insisted on telegraphing the owner and learning immediately whether he would accept the first offer. In the meantime the owner had telegraphed to his agent to make no sale without his authority. Knowing these facts, the first party finally induced the agent to give him a written contract of sale, under which he took possession: Held, that the owner was not bound by the sale, because of the bad faith of his agent, which was known to and participated in by the purchaser.
    9. All agents aré required to act in the utmost good faith with their principals, and it is the duty of an'Sgent to sell property to procure the best price in the market, or at least to make all reasonable efforts to do so.
    Appeal from the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding.
    Messrs. McKenzie & Calkins, for the appellant.
    Messrs. "Williams & Lawrence, for the appellee.
   Mr. Justice Walker

delivered the opinion of the Court:

This was an action of ejectment commenced by appellee in the Knox circuit court, against appellant, to recover a part of two lots in the city of Galesburg. The case was submitted to the court for trial, by consent, without a jury. Having heard the evidence, the court found the issues for the plaintiff, and after overruling a motion for a new trial, rendered judgment in his favor. Defendant thereupon brings the case to this court on appeal.

The material facts in the case are, that Mrs. S. W. Kerris died testate, seized of the property in controversy. By her will she devised her property to her children, and she appointed her sons, Samuel and Henry E. Hitchcock, executors of her will, but they never qualified, or obtained letters testamentary. The will conferred upon them power to sell real estate, and acting under the belief that they could, on the probate of the will, exercise all of the powers it conferred, they did not give' bond, or receive letters testamentary on her estate. Soon after her death Samuel- and Henry E. placed the property in the hands of Merrill' & Orange Com-stock, a firm of insurance and real estate agents, to rent or sell, if they could find a purchaser at a price placed on the property by the Hitchcocks. Their appointment as agents was not in writing, but merely verbal. It does not appear that the other heirs were consulted, or ever consented, but on the contrary, Samuel and Henry rE. seem to have supposed they were acting under the power contained in the will. Samuel and Henry were not residents of this State, but Samuel resided in Iowa, and Henry in Nebraska. Appellant offered the Comstocks $2250 for the place, and the offer was communicated to the Hitchcocks, but before the offer was accepted one Mathews offered to give $100 more than appellant had offered. The Comstocks informed appellant of the fact, and he at once telegraphed to Henry requesting him to telegraph the Comstocks whether he accepted his offer of $2250. The Comstocks had previously telegraphed the Hitch-cocks of appellant’s offer, and after Mathews made his offer they telegraphed the Hitchcocks, informing them of it; but before Henry received the telegram he telegraphed the Com-stocks to accept appellant’s offer, and on the receipt of their last telegram he answered directing them to accept no offer unless he approved it, thus limiting their authority to sell. Samuel, however, knowing of both offers, telegraphed the Comstocks to sell to appellant on his offer. Appellant urged the Comstocks to close the trade, and give him a written agreement, but they declined until they could hear from Henry in answer to their telegram informing him of Mathews’ offer; but he pressed his demand until they yielded, and gave him a contract for the conveyance of the property. He paid them $250, and deposited $2000 in bank, to be paid on the delivery of the deed executed by the heirs. Subsequently the heirs all joined in a warranty deed to appellee for the consideration of $2500, and thereupon he commenced this suit to recover the premises.

' Appellant insists that he purchased the property and entered under the contract he obtained from the Comstocks, and that he is rightfully in possession, and being so, appellee is not entitled to recover. What, then, is the law arising on this state of facts? The second section of the Statute of Frauds expressly declares that all verbal contracts relating to title to, or any interest in, lands, for more than one year, shall be inoperative. It requires all contracts to be in writing, signed by the owner, or if by an agent, he must be authorized in writing, signed by the owner, and the contract by the agent to be in writing, and signed by him. Here no such authority was conferred on the Comstocks when they were appointed agents to sell, and had there been, it would only have bound Samuel and Henry, as they had no power or authority to bind the other heirs. Samuel and Henry, it seems, acted without reference to the consent or authority from the other heirs. This agreement between the Comstocks and appellant was void, and incapable of being enforced as an entire contract.

But it is claimed that Samuel and Henry are bound, because they directed the Comstocks to sell to appellant on his offer, by telegram, and that was in writing, and signed by them, and that fulfills the requirements of the statute. That is no doubt true as to Samuel, as he, in writing, authorized the sale to appellant after learning all the facts. Whilst appellant contracted for and supposed he was purchasing the title to the whole lot, he in fact only procured a contract for Samuel’s interest, and he no doubt may claim and insist upon the conveyance of that interest to him by Samuel; but having purchased the whole, he can not be compelled to receive a part of the title, but may elect to insist upon receiving title to that part. In relation, however, to Henry, he was not bound, inasmuch as the Comstocks acted in .bad faith with him, and appellant participated with them, and urged them to act in bad faith, knowing-all the-facts. The Com-stocks telegraphed to Henry, notifying him of Mathews’ higher offer, and it was bad faith to close the contract before they received his answer and directions, and appellant urged them to close the contract before the answer was received, notwithstanding they had at first declined, until they heard from Henry. All agents are required to act in the utmost good faith with their principals. It was the duty of these agents to procure the best price in the market, or at least make all reasonable efforts to do so, and to act otherwise is a breach of duty. They had telegraphed Henry, apprising him that more could be obtained for the property, and to have avoided bad faith they were required to awrait an answer. Instead of that they sold at the lower price, knowing they could obtain more, because it had been offered to them; and appellant induced them, knowing all the facts, to violate their duty, and having done so he can claim nothing from Henry, under the agreement.

The question then arises, whether the taking of possession by appellant was authorized by the agreement he received from the Comstocks. • The contract was not binding on any of the heirs, as we have seen, but may be on Samuel. None of the heirs ever authorized the Comstocks to give appellant possession of the property. The mere purchase of land does not authorize the purchaser to enter into possession without license from the seller. Such license may be shown to have been express, or it may be implied from circumstances. In this case there is no pretense that any- express license was given by the Hitchcocks, nor are we able to find any circumstance from which it may be inferred. Had the contract been legal and binding, it would not follow that appellant might enter into possession without an agreement with the vendors authorizing him to enter. (Williams v. Forbes, 47 Ill. 148.) A mere contract for a sale of real property does not authorize an entry hy the purchaser. An agreement or covenant .to convey the title at a future time does not authorize the purchaser to enter without a license. (Suffern v. Townsend, 9 Johns. 35; Cooper v. Starver, id. 331; Erwin v. Clinstead, 7 Cow. 229.) This must he so on principle. The doctrine is uniformly recognized, and of general application, that the fee draws to it not only the right of, but the constructive possession. These rights at law accompany the fee, and must be recognized and enforced at law. A mere contract or covenant to convey at a future time, on the purchaser performing certain acts, does not create an equitable title. It is but an agreement that may ripen into an equitable title. When the purchaser performs all acts necessary to entitle him to a deed, then, and not till then, he has an equitable title, and may compel a conveyance. (Bispham’s Equity, sec. 365.) When the purchaser is in a position to compel a conveyance by a bill in chancery, he then holds the equitable title. Before that he only has a contract for a title when he performs his part of the agreement.

Although appellant has a right to elect to enforce his contract if he chooses, and obtain Samuel’s interest, he had not, nor has he yet, elected to become the purchaser of Samuel’s interest. Until he so elects he has no right to possession, even if the contract for Samuel’s interest was fully performed by him. He surely can have no right to possession under an agreement he may repudiate at will. Nor did the other heirs authorize the Comstocks to admit him to possession. In a proceeding at law, in the absence of a license, and there is nothing from which it can be inferred, he is not entitled to enter on the possession of the other heirs, and not having any right to possession, the judgment of the court below is right.

It is urged that the court erred .in not allowing the.legal propositions asked by appellant. It is enough to say they were not applicable, under tlie evidence in the case. They axe at variance with the views here expressed, and being so, the court below did not err in holding they were not the law applicable to the evidence in the case.

Perceiving no error in the case, the judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Scholeield

text:
    Chicago and Northwestern Railway Company v. Fredericke Moranda, Admx.

      Filed at Ottawa January 23, 1884.

    1. Fellow-servants—who to he so regarded, within the rule respondeat superior. To constitute servants of the same master “fellow-servants,” within the rule respondeat superior, it is not enough that they are engaged in doing parts of the same work, or in the promotion of the same enterprise carried on by the master, not requiring cooperation, or bringing them together, or in such relations as that they may have an influence upon each other, but it is essential that at the time it is claimed such relation exists, they shall be directly cooperating with each other in the particular business in hand, or that their usual duties shall bring them into habitual consociation, so that they may exercise an influence upon each other promotive of proper caution.
    2. Same—;former decision. In the case of Chicago and Northwestern Ry. Co. v. Moronda, 93 111. 302, it was not intended to be decided as a matter of law that a section foreman of a gang of track repairers, and the engineer or fireman on an engine drawing a train, all employees of the defendant, were not directly cooperating with each other in their respective labors, and •that their usual duties did not bring them into habitual consociation, so that they might exercise an influence upon each other promotive of proper care, but this was merely assumed as a hypothesis, for the purpose of eliminating from previous decisions the proper rule of law.
    3. Instruction—should intimate no opinion on the facts. It is essential not only that the rules of law shall be 'given to the jury with substantial accuracy, but also that the jury be left perfectly free to form and declare, from the evidence, their opinion upon the questions of fact. It is not admissible for the court to express any opinion to the jury on questions of fact, even though in conformity to the previously expressed opinion of this court, upon reviewing a question of fact.

      4. Law and fact—as to who are fellow-servants—as a question of fact. In a suit against a railway corporation to recover for negligence resulting in the death of a section foreman having charge and oversight of repairs upon a certain part of the road track, it is error to instruct the jury that such foreman is not engaged in the same line of duty with an engineer' and fireman running with the defendant’s locomotive engines, and therefore not within the rule which exempts the common employer from liability to one of its employees for damages resulting from the fault, etc., of a fellow-servant. Whether such persons were so operating and consoeiating is a question of fact for the jury, and not of law.
    5. Evidence—expert testimony—opinions of witnesses. In an action to recover for an injury received from the falling or throwing of a piece of coal or slate from a passing locomotive upon a railroad, it is error to allow a witness to be asked and to testify what he considers a safe distance to retire from the track when the train is passing. Whether the line of danger from a passing train is at one distance rather than another, depends upon facts, and not opinions. This does not fall within the rule as to expert testimony, and the allowance of such opinions to be given is to usurp the functions of the jury.
    6. Same—as tending, or not tendirtg, to contradict other testimony. In a suit to recover for an injury of the plaintiff's intestate, received from a passing train while he was engaged in repairing the track, the defendant, a railway company, called as a witness one occupying the position of road master of a part of the road at the time of the injury, who testified that he had given the intestate instructions a number of times about getting out of the way of trains, etc. Plaintiff, in rebuttal, called several of the other men who worked with the deceased, and proved by them, severally, that the road master gave them no such instructions: Held, that the latter evidence was improper, as not tending to contradict the road master, he having testified only as to instructions given to the person who was injured.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Joseph M. Bailey, Judge, presiding.
    This is the second time this case has come before this court. It was first before it at its September term, 1879, and a judgment was then rendered reversing that of the circuit court, and remanding the cause for a new trial. The second trial in the circuit court resulted, as the first, in a judgment for the plaintiff. That judgment was affirmed by the Appellate Court for the Second District, and this record is brought here by appeal from that judgment. The action is case, under the statute, to recover damages because of the negligence Of appellant, resulting in the death of appellee’s intestate.
    The material facts are: John Moranda, (appellee’s intestate,) while standing by the side of the track of appellant, some five or six feet from the rail, was struck by a heavy piece of coal or slate thrown or falling from the engine or tender of a rapidly passing passenger train of appellant. He was, at the time, foreman of a section gang of track repairers in the employ of appellant, whose duties were to keep in repair a section of appellant’s track. Appellee claims, and introduced evidence to sustain the claim, that the piece of coal or slate was thrown from the engine or tender by the fireman. The errors assigned question the rulings- of the Appellate Court in affirming the judgment of the circuit court.
    Mr. B. C. Cook, for the appellant, made the following, among various points, to which are annexed the authorities cited and commented on:
    Whether a section foreman, having charge of repairs in the track, is, or is not, engaged in the same line of duty with an engineer and fireman, and hence fellow-servants, is a question of fact, and the court erred in instructing that they were not such. Illinois Central R. R. Co. v. Cox, 21 Ill. 20 ; Chicago and Alton R. R. Co. v. Keefe, 47 id. 108; Murphy’s case, 53 id. 336; Railway Co. v. Britz, 72 id. 256; Valtez’s case, 85 id. 500; Chicago and Alton R. R. Co. v. Shannon, 43 id. 338; Chicago and Northwestern Ry. Co. v. Swett, 45 id. 197; Honner v. Illinois Central R. R. Co. 15 id. 550; Schooner “Norway” v. Jensen, 52 id. 373; Illinois Central R. R. Co. v. Welch, 52 id. 183; Chicago and Northwestern Ry. Co. v. Jackson, 55 id. 492; Illinois Central R. R. Co. v. Gregory, 58 id. 272; Ryan v. Chicago and Northwestern Ry. Co. 60 id. 171; Toledo, Peoria and Warsaw Ry. Co. v.
      Conroy, 61 id. 162; Illinois Central R. R. Co, v. Patterson, 69 id. 650; Toledo, Wabash and Western Ry. Co. v. Fredericks, 71 id. 294; Toledo, Wabash and Western Ry. Co. v. Ingraham, 77 id. 309; Pittsburg, Ft. Wayne and Chicago Ry. Co. v. Powers, 74 id. 342; Toledo, Wabash and Western Ry. Co. v. O'Connor, 77 id. 391; Indianapolis and St. Louis R. R. Co. v. Morgenstern, 106 id. 216; Durkin’s case, 76 id. 395.
    As to the liability of the master to a servant for the negligence of a fellow-servant: Gormly v. Ohio and Mississippi Ry. Co. 72 Ind. 32; Foster v. Railway Co. 14 Minn. 360; Howland v. Railway Co. 54 Wis. 226; Coon v. Railroad Co. 1 Seld. 492; Whalen v. Railway Co. 8 Ohio St. 249; Quincy Mining Co. v. Keltz, 42 Mich. 36; Holden v. Fitchburg R. R. Co. 129 Mass. 268.
    The relation of master and servant imposes no obligation on the master to take more care of the servant than the servant is willing to observe for his own personal safety. Railroad Co. v. Flanagan, 71 Ill. 277; Pennsylvania Co. v. Lynch, 90 id. 334; Railroad Co. v. Troesch, 68 id. 545.
    It is a rule of universal application that the care required should be proportionate to the danger and risk of the situation of the service. Railroad Co. v. Bell, 70 Ill. 102; Railroad Co. v. Sweeney, 52 id. 325; Railroad Co. v. Donahue, 75 id. 106; Pennsylvania Co. v. Lynch, 90 id. 332.
    The testimony given to contradict Kitel, the road master, was incompetent. Kitel did not testify that he gave the instructions to these witnesses, but only to Moranda, the section boss. This evidence did not contradict Kitel, and ought hot to have been admitted. McCoy v. People, 71 Ill. 111; Richardson v. Kelly, 85 id. 491; Robertson v. Bross, 83 id. 116; 1 Greenleaf on Evidence, sec. 630, and note.
    The court erred in allowing Cullis to give his opinion as to what is a safe distance to retire from the track when trains are passing. City of Chicago v. McGiven, 78 Ill. 347; Pennsylvania Co. v. Conlan, 101 Ill. 43.

      Mr. John D. Ceabteee, and Mr. A. -K. Teusdell, for the appellee:
    The master will not he exempt from liability for injury to one servant by the neglect of another, where it does not appear that they were either strictly cooperating in the particular work they were about, or were usually consociated in their usual duties. Chicago and Northwestern Ry. Co. v. Moranda, 93 Ill. 302.
    That an erroneous instruction will hot be a ground for a reversal if the court can see that justice has been done, has been repeatedly decided by this court. Race v. Oldridge, 90 Ill. 25; New England Fire and Marine Ins. Co. v. Wetmore, 32 id. 221; Sticker v. Otto, 86 id. 161; Chicago and Western Indiana R. R. Co. v. Dooling, 95 id. 202; Martin v. People, 13 id. 341; Lawrence v. Hagerman, 56 id. 68.
   Mr. Justice Scholeield

delivered the opinion of the Court:

"When this case was here before, we reversed the judgment for error of the circuit court in admitting evidence to the effect that the widow and children of the intestate had no other means of support than that of his daily earnings. (Chicago and Northwestern Ry. Co. v. Moranda, 93 Ill. 302.) Although, as the law then was, we reviewed questions of fact as well as of law, this left no question of fact to be passed upon, and it was not intended to then express any opinion that might prejudice a future trial upon any question of fact involved in the case; but in answer to a point made by counsel for appellant, and to eliminate from previous decisions a rule of law for future guidance, we assumed, as a hypothesis sustained by the evidence in the record, that at the time of the alleged injury the intestate, as„section foreman of a gang of track repairers, and the engineer and fireman on an engine drawing one of appellant’s trains, were not directly cooperating with each other in their respective labors, and that their usual duties did not bring them into habitual consociation, so that they might exercise an influence upon each other promotive of proper caution. As a hypothesis presenting the question discussed, the particulars were as well assumed as if actually true,—for the 'governing rule, -not the sufficiency of the proofs, was the thing to be determined. But it was not intended to be asserted, and obviously it could not be asserted, as a universal truth, for numerous cases may be readily conceived in which there would be either direct cooperation or habitual consociation between and with such servants in a single, continuous work or enterprise, and, as a particular truth, it would be a subject of inquiry upon each trial. The circuit court, upon the second trial, however, gave this instruction to the jury:

“The jury are instructed that a man employed by a railroad company in the capacity of a section foreman, having Oharge and oversight of repairs upon a certain portion of its Q track, is not engaged in the same line of duty with an engineer and fireman running such company’s locomotive engines, and is therefore not within the rule which exempts the common employer from liability to one of its employees for damages resulting from the fault, carelessness or negligence of a fellow-servant or co-employee.”

Even if, when the case was here before, we had found, on the facts then before us, that the intestate and fireman and engineer were not so cooperating or eonsociating at the time of the injury as to exempt the common master from liability for injury received by the one in consequence of the negligence of the other, this instruction ought not to have been given. Whether they were so cooperating or eonsociating is a question of fact for the jury, and not of law for the court. (Wabash Ry. Co. v. Elliott, 98 Ill. 481; Pennsylvania Co. v. Conlan, 101 id. 93; Chicago and Alton R. R. Co. v. Bonifield, 104 id. 223; Indianapolis and St. Louis R. R. Co. v. Morgenstern, 106 id. 216.) In the last named case we said: “The definition of fellow-servants may be a question of law, but it is always a question of fact, to be determined from the evidence, whether the particular case falls within the definition. ”

In the former opinion in this case, ubi 'supra, we held that in order to constitute servants of the same master “fellow-servants, ” within the rule respondeat superior, it is not enough they are engaged in doing parts of some work, or in the promotion of some enterprise carried on by the master, not requiring cooperation nor bringing the servants together or into such personal relations that they can exercise an influence upon each other promotive of proper caution in respect of their mutual safety, but it is essential that they shall be, at the time of the injury, directly cooperating with each other in the particular business in hand, or that, their usual duties shall bring them into habitual consociation, so that they may exercise an influence upon .each other promotive of proper caution. We feel constrained to adhere to this ruling, notwithstanding the very ingenious and able argument of counsel for appellant in favor of its modification.

But it is essential, not only that the rule shall be given to the jury with substantial accuracy, but also that the jurors shall thereupon be left free to form and declare, from the evidence before them, their opinion upon the question of fact. Because the evidence upon a former trial may have justified a particular conclusion of fact, it does not follow that the evidence on this trial justifies the same conclusion, and it is for the jury to determine, and not for the court to assume, what is the conclusion authorized by the evidence. Under our practice it is not admissible for the court to express any opinion to the jury on questions of fact, and it is no less so because the opinion, expressed' may be in conformity with a previously expressed opinion of this court upon reviewing a question of fact. Where there is evidence before a jury upon which it is legally admissible there may be difference of ' opinion, it is error to allow any opinion of judge or court to be obtruded upon the jurors to influence their determination. There was, here, such evidence, in our opinion, and the giving of the instruction was, therefore, clearly erroneous.

On the trial the appellee was permitted to ask of a witness, and the witness was permitted to answer, over appellant’s objection, what the witness considered a safe distance to retire from the track when the trains are passing. This was error. The matter is not such as requires the opinion of an expert. We can not conceive that it can be better known to a man familiar with the operation of railroads than to one ■who is not, that the safe distance is always beyond, and the unsafe distance is always within, the line of danger, and whether the line of danger is at one distance rather than another, depends upon facts, not upon opinions. If there is danger from passing cars, the questions naturally arise, what is its nature ?—how far does it extend ? And the jury being enlightened in these respects, determine for themselves what is a “safe distance.” The witness is not to be allowed to usurp their functions. Hopkins v. Indianapolis and St. Louis R. R. Co. 78 Ill. 32; Pennsylvania Co. v. Conlan, supra.

A witness occupying the position of road master of a portion of appellant’s road at the time the intestate was injured, being called on behalf of appellant, testified that he had given the intestate instructions a number of times about getting out of the way of trains, etc. Appellee, thereupon, in rebuttal, called the other men, or at least several of them, who worked under the intestate at that time, and was permitted by the court, over appellant’s objection, to prove by them, severally, that the road master gave them no such instructions. This was improper. The road master had not testified that he gave these individuals such instructions, and because he did not do so, or because they did not hear him so instruct the intestate, it does not follow that his testimony is untrue.

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

Judgment reversed.