author: Mr. Justice Magruder

text:
    Goerge Bolzer v. The People of The State of Illonois.

      Filed at Ottawa June 15, 1889.

      1. Cbiminal law&emdash;murder&emdash;what constitutes. If there be an old quarrel between A and B, and they are reconciled, and then, upon a new and sudden falling out, A kills B, this is not murder; but if it is made to appear that the reconciliation was but pretended or counterfeit, and that the hurt done was upon the force of the old malicej it is murder. The act shall be attributed to passion produced by provocation, and not to the old grudge, if it appears the old grudge had ceased.
    2. Same&emdash;provoking an assault&emdash;with intent to kill the assailant. Whether a person accused of having committed murder formed a deliberate purpose to kill the deceased, and went to the house of the latter and insulted his wife with the design of inciting the deceased to an attack, so as to have a pretext for killing him in the conflict, is a question within the exclusive province of the jury to determine from the evidence.
    3. Same&emdash;self-defense. On the trial of one upon the charge of murder, in a case where the deceased sought the accused at his own house, entered the same in a violent manner and attacked him, the wife of the deceased accompanying him and joining in the attack, theyboth using deadly instruments in their assault, it is the province of the jury to determine whether the occurrences which took place in the prisoner’s house were such as to justify the plea of self-defense, when considered by themselves, without reference to anything which had happened prior to the beginning of the fight.
    4. Same&emdash;threats. Where provocation intervenes a threat of a prisoner and the killing by him, it is not a conclusive presumption of law that the killing was in pursuance of the threat, and not upon the passion produced by the subsequent provocation. It is for the jury to say whether the act of killing, in such a case, was the result of present provocation, or of deliberate intent to kill, previously formed.
    5. Whether a homicide was committed in pursuance of threats previously made, or in self-defense against an attack made upon him in his own house, is a question for the jury; and it is proper for them to take into consideration all the circumstances under which the threats were made, with a view of determining whether or not they were the expressions of a deliberate purpose or design to kill, or whether they were b ut the ebullitions of a sudden passion, followed by reconciliation.
    6. Upon the trial of a charge of murder, the prosecution proved that a month or two before the killing, which took place on an attack of the deceased upon the defendant, the latter, while somewhat intoxicated, said, “he would not leave the place or town before he killed” the deceased : Held, that in determining the degree of malice implied in the threat, it was proper for the jury to take into consideration the facts that the defendant was more or less intoxicated at the time; that he and the deceased were in the habit of quarreling one day and becoming friends the next day; and that before the killing they had become reconciled, and were on friendly terms on the day of the killing.
    7. In the same case, the prosecution proved, by another witness, that on the day of the killing the prisoner showed the witness a revolver, and said he was going to shoot the deceased that night, because he owed him two dollars and had refused to let his wife have fifty cents. The prisoner testified that he told the witness that deceased wanted to fight one B., and said, “Well, he (deceased) insulted me several times the same way, and if he comes to me again that way I am going to smash him;” that witness said, “Let him go,—-you know how he is," and that he (the prisoner) said, “I am not going to do anything unless he attacks me again, as he has done several times heretofore:" Held, that in determining the degree of malice implied from this threat, the jury were authorized to consider the explanation made by the prisoner, and to give to his explanation such weight as they might think it entitled to, and also the fact that such threat made but a slight impression on the_ witness.
    8. A threat to defend one’s self in the event of being attacked, does not imply the same malice and evil intent as a threat to kill, unaccompanied by any qualifying words.
    9. In the same case, defendant’s counsel asked the court to instruct the jury that they had the right to take into consideration all the circumstances under which the threats were made, in determining the weight to be given to them, and in deciding the question whether or not they were the expression of a predetermined and well-defined intention on the part of the accused to kill the deceased: Held, that the refusal of the instruction was error.

      10. The defendant’s'cotinsel offered to prove that the prisoner had been previously attacked by the deceased with a hatchet, and had had the deceased bound over to keep the peace, which the court refused to-admit: Held, that this proof should have been admitted, not for the purpose of excusing the subsequent conduct of the prisoner, but as tending to explain the threats, and as tending to confirm the prisoner’s, own account of the nature and character of those threats.
    Writ oe Error to the Circuit Court of La Salle county; the Hon. Charles Blanchard, Judge, presiding.
    Mr. James H. Eckels, and Mr. Rector C. Hitt, for the plaintiff in error:
    The threats were improperly admitted, for the reason they do not constitute any part of the res gesta. What occurred at Bolzer’s house at the time of the shooting makes up the-case for or against the defendant. If then and there a legal provocation was given, the conduct of the defendant should be ascribed to that, and not to any previous quarrel or threats. State v. Johnson, 2 Jones’ L. 247; Copelands. State, 7 Humph. 429; State v. Baker, 1 Jones’ L. 267; State v. Hill, 4 D. & B. 491; Herrigan & Thompson on Self-defense, 78, 203.
    The court erred in refusing defendant permission to prove-what was the reputation of the deceased for quarreling, fighting and viciousness in the community where he resided. Williams v. People, 54 Ill. 423; Monroe v. State, 5 Ga. 75; State v. Bryant, 55 Mo. 75; State v. Keene, 50 id. 367; Flannagan v. State, 46 Ala. 703; Commonwealth v. Flannagan, 8 Phil. 430; People v. Edwards, 41 Cal. 640; Field v. State, 47 Ala. 603; Hudson v. State, 3 Texas L. J. 21; People v. Anderson, 39 Cal. 703; Wise v. State, 2 Kan. 419; State v. Aban, 39 Wis. 185; Hurd v. People, 25 Mich. 418; McKenna v. People, 18 Hun, 580; Harrison v. Commonwealth, 79 Va. 374; Herrigan & Thompson on Self-defense, 695; 2 Bishop on Crim. Proc. secs. 609-625.
    It was no less error to refuse the defendant permission to-introduce evidence of a prior assault of deceased, and the proceedings binding him to keep the peace.

      Mr. George Hunt, Attorney General, for the People:
    We know of no rule of law that renders incompetent the declarations of a party to the suit concerning the matter in suit, voluntarily made at any time. Evidence of previous threats, even when far less direct than in this case, has been admissible as tending to show the guilt of defendant. Schoolcraft v. People, 117 Ill. 271.
    To justify a killing in self-defense, it is not sufficient to show that the deceased was the assailant, but it must also appear that the danger was so urgent and pressing, that in order to save his own life, or to prevent his receiving great bodily harm, the killing was absolutely necessary. Criminal Code, sec. 149; Kinney v. People, 108 Ill. 519.
    A person can not avail himself of the right of self-defense, if the necessity for its exercise is brought on by his deliberate and lawless acts for the purpose of taking life. 1 Wharton on Crim. Law, 476, 486; 1 Russell on Crimes, 718, 719; Hughes v. People, 116 Ill. 330; Adams v. People, 47 id. 378; State v. Neely, 20 Iowa, 116.
    No reputation of previous conduct of deceased could justify the defendant in following up and shooting the deceased after he had retreated from the fight. 2 Bishop on Crim. Proc. 612, 619.
   Mr. Justice Magruder

delivered the opinion of the Court:

This was an indictment in the Circuit Court of LaSalle County against George Bolzer for the murder of Nicholas Hau on July 15,1888. The jury found the prisoner guilty of murder as charged, and fixed his punishment at imprisonment in the penitentiary for life. Motion for new trial was overruled, and judgment rendered on the verdict.

Bolzer and Hau were laboring men, the former a farm hand and the latter a bottle blower. They lived in Streator, and were near neighbors, there being one house between the houses which they occupied. They were own cousins, and came together to America in the same ship.

Between one and two o’clock on the afternoon of July 15, 1888, Bolzer called for Hau at the latter’s house, and the, two went together to the saloon of one Schaub in Streator, where they remained together a few moments and separated. About four o’clock Bolzer returned to his home, and, finding that his wife was visiting Mrs. Hau, went after her. He used harsh language towards his wife, and, upon being reproved for doing so by Mrs. Hau, he abused the latter also. He had been drinking during the day. Through the efforts of one Kreitzer, who occupied a part of the house in which Hau lived, Bolzer was made to return to his own house. In a few moments Hau returned, and entered Bolzer’s house and played with his child. He then left Bolzer’s house to go to his own house. After he left, he was told that Bolzer had abused his wife. This made him angry, and he came back and again went into Bolzer’s house.

Kreitzer says, that the deceased, upon entering the defendant’s home, seized the defendant by the hair and struck him in the face; that the two fought together in the corner of the room; that Mrs. Hau came in with a piece of iron in her hand and struck the defendant over the head with it twice, and went out and got a brick, and struck him over the head with the brick; that he (Kreitzer) took hold of the brick and threw it out and pushed the defendant back; that the defendant ran away from the deceased into the back room or kitchen and shut the door; that the deceased found a hammer near the wall, and opened the door of the back room and struck Bolzer with the hammer twice in his right side; that Bolzer was about two feet from the door when he was struck; that the door was open about two feet; that Bolzer stretched out his right arm and shot; that Hau died in about forty minutes afterwards. On the first trial of the case, Kreitzer testified that Hau was striking Bolzer, when Bolzer shot him; on the second trial he testified, that it was not more than a second and a half after Hau struck the defendant with the hammer before he was shot, and that he had the hammer in his hand when the shot was fired.

Mrs. Hau testifies, that she went into Bolzer’s house and raised her hand to strike him in the head with a brick, while he and her husband were fighting, but that he kicked her on the forehead, and made the brick drop from her hand; that she then picked up a wedge or railroad spike and struck him over the head with it; that she “made to strike him again,” but Kreitzer told her to let him alone; that Kreitzer parted the two men; that Bolzer went into the kitchen and shut the door; that her husband picked up a hammer from the floor, and opened the door and struck Bolzer twice with it, once in the breast and once in the side; that her husband was told by Kreitzer to fight no more, and threw down the hammer and said he was going out; that she went out ahead, and heard the report of the pistol after she had gone as far as the next house. She says, upon cross-examination, that Bolzer kicked backwards before she struck him; that he hit her over the left eye with his heel; that she was directly behind him and struck him twice with the iron in the head.

The defendant says, that Hau came into his house and charged him with having used abusive language towards his wife, and he denied it; that Hau grabbed him by the throat; that Mrs. Hau struck him with a brick between the eyes and nose; that Kreitzer struck him with a stone or brick; that Hau tore his shirt and seized a chair to strike him, but he took the chair from him and threw it into the bed room; that the deceased took hold of another chair, but Mrs. Bolzer got it away from him; that Hau took a hammer and struck him in the back of the head, and, when he turned around, struck him with it again in the breast; that he ran into the kitchen and shut the door; that Hau opened the door, and, as he opened it, struck him a third time on the shoulder, saying—“son of a bitch—I kill you”; that he (Bolzer) had the revolver in his hand and shot; that he did not.know which way or how he shot.

Upon the trial of the case the prosecution placed a witness by the name of Beingarde Schwan upon the stand, who swore, that, a month or two before the shooting, Bolzer came into her grocery and bought a cigar; that he said, at that time, “he would not leave the place, or the town, until he killed Nick Hau”; that he was drunk at the time, and walked and talked like a man, who had too much beer in him; that Hau and Bolzer were always quarreling, and had been in the habit of fighting each other, and would be friends one day and enemies the next day.

The prosecution also produced a witness named Henry Oster, who swore, that he was in Schaub’s saloon between 2 and 3 o’clock on the afternoon of July 15, 1888; that Bolzer was there and drank a glass of beer with him; that Bolzer took him aside into a little room, and show'ed him a revolver, and said he was going to shoot Hau that night, because Hau owed him $2.00 and had refused to let Mrs. Bolzer have fifty cents ; that he (Oster) told Bolzer not to shoot Hau for that, but to give his revolver to Schaub to keep “until tomorrow; may be that you will get drunk tonight, that you will shoot him”; that, after that, the witness saw Hau through the window, but did not tell him Bolzer was going to shoot him.

It also appears, that, when Bolzer went to Hau’s house that afternoon to get his wife to come home and used abusive language towards her and Mrs. Hau, he flourished his revolver in the presence of the women and submitted it to Kreitzer for examination.

The defendant testified, that he had no recollection of telling Beingarde Schwan.that he was going to kill Hau; that he had a revolver, which he had left at the saloon of a Hungarian to be raffled for; that the man who drew it in the raffle failed to come for it; that he went to the Hungarian that afternoon and received the revolver; that, after inviting Oster to take a glass of beer at Sckaub’s saloon, he told Oster that Hau wanted to fight one Boyer, and said to Oster: “Well, he insulted me several times the same way, and if he comes to me again that way I am going to smash him”; that Oster replied: “let him go, you know how he is”; that he (Bolzer) then said, “I am not going to do anything unless he attacks me again as he has done several times heretofore.”

The defendant offered to prove that Hau had made an attack upon Bolzer at one time with a hatchet; that in March, 1888, Bolzer had gone before a justice of the peace in La Salle Bounty and had Hau bound over to keep the peace; but the «court refused to allow the offered testimony to be introduced.

Two theories in regard to the death of Hau are naturally suggested by the facts thus detailed. One is that plaintiff in ■error formed a deliberate purpose in his own mind to kill the ■deceased, and went to the latter’s house and insulted his wife in order to provoke him to a conflict, and then, after the conflict was provoked and while it was going on, shot the deceased in pursuance of the purpose so formed. This is the theory of the State.

Another theory is, that the plaintiff in error fired the fatal ■shot, not in pursuance of a previously formed design, but in self-defence, during an attack upon him in his own home, which he had not intentionally provoked, and under such circumstances as to induce in the mind of a reasonable and prudent man the belief that it was necessary to kill, in order to save his own life, or prevent great bodily harm to himself. This is the theory of the defence.

It is claimed on behalf of the prisoner, that he went into Hau’s house on the afternoon of July 15 merely because his ■own wife happened to be there, and that his insult to Mrs. Hau was only the result of an unpremeditated burst of anger produced by her interference in the quarrel between himself and Ms wife. Whether the language abusive of Mrs. Hau was uttered for the reason thus stated, or with the design of inciting the deceased to an attack when he should be informed of it, was a matter which it was within the exclusive province of the-jury to determine.

It was also the province of the jury to determine, whether the occurrences, which took place after the deceased entered the house of the prisoner and began the attack, were such as. to justify the plea of self-defence, when considered by themselves and without reference to anything which happened prior to the beginning of the fight.

The object of proving the threats previously made by the plaintiff in error was to show, that he entertained malice towards the deceased and had formed the design of killing him,' But the evil purpose indicated by such threats may have been abandoned before the killing occurred. A genuine reconciliation may have taken place between the parties. It may also-be true, that the threats were the mere ebullitions of momentary anger, and not the expressions of a deliberate intention.

Where provocation intervenes between the threat and the-killing, it is not a conclusive presumption of law,"that the killing was in pursuance of the threat and not upon the passion produced by the provocation. It is for the jury to say, whether the act of killing was done because of the present provocation, or because of a deliberate intent to kill previously formed. In the present case, whether Bolzer killed Hau in pursuance of the threats previously uttered, or in self-defence because of the attack made upon him in his own home, was a question to. be. decided by the jury upon the evidence. It was, therefore, proper for them to take into consideration all the circumstances, under which "the threats were made, with a view of determining whether or not they were the expressions of a deliberate purpose or design to kill.

• “If there be an old quarrel between A. and B. and they are-reconciled again, and then upon a new and sudden falling out, A kills B, this is not murder; but if upon circumstances it appears that the reconciliation was but pretended, or counterfeit, and that the hurt done was upon the force of the old malice, it is murder.” Here we have the true doctrine. The act shall be attributed to passion produced by provocation, and not to the old grudge, if it appear that the old grudge has ceased. * * * “If A challenge B to fight; B declines the challenge, but lets A know that he will not be beaten, but will defend himself; if B going about his vocation, wears his sword, is assaulted by A and killed, this is murder in A; but if B had killed A upon that assault, it had been se defendiendo, if he could not otherwise escape,” etc. * * * In the case of The Queen v. Kirkham, 8 Car. & P. 115; 34 Eng. Com. L. 318, where a father stood indicted for the murder of his son, it appeared in evidence, that the act of killing was preceded by such an immediate act of provocation, as would extenuate the crime to manslaughter, unless malice was shown. The crime was committed on Saturday and testimony was given of threats to kill the deceased, uttered by the prisoner on the preceding Monday and Wednesday. The jury was instructed that the question of manslaughter or murder depended upon the fact, whether these threats were the mere ebullitions of momentary anger, or the expressions of a deliberate purpose; “so that, if they believed that on the Monday or Wednesday before, the prisoner used the threats deliberately, then all the quarreling and wrestling might be dismissed from their consideration.” (State v. Johnson, 2 Jones’ Law, 247; 64 Am. Dec. 582; State v. Johnson, 1 Iredell’s Law, 354; 35 Am. Dec. 742; State v. Ta-cha-na-tah, 64 N. C. 614).

In determining the degree of malice implied in the threat, made a month or two before the shooting in the presence of the witness Schwan, it was proper for the jury to take into consideration the facts, that the plaintiff in error was more or less intoxicated at the time; that he and the deceased were in the habit of quarreling one day and becoming friends the next day; and that, before the deceased was killed, they may have become reconciled, it appearing that they went to Streator to-gather between one and two o’clock on the afternoon of July 15 apparently on friendly terms with each other.

In determining the degree of malice implied in the threat made on July 15 in the presence of Oster, the jury were authorized to consider the explanation of that threat made by the plaintiff in error, and to give to his explanation of it such weight as they may have thought it entitled to. According to his version of the matter, he had heard of a fight which Hau intended to have with one Boyer, and being thus reminded of the attacks which he alleges to have been made upon himself by Hau, he threatened to “smash” the latter in case he should be again attacked. His words would appear to have made but slight impression upon Oster, as the latter saw the deceased soon after the words were uttered, but gave the deceased no warning.

A threat to defend one’s self in the event of being attacked does not imply the same malice and evil intent as a threat to kill, unaccompanied by any qualifying words. No specific reference was made to the threats proven by the prosecution in any of the instructions on either side that were given to the jury. The defendant’s counsel asked the court to instruct the jury that they had the right to take into consideration all the circumstances, under which the threats were made, in determining the weight to be given to them, and in deciding the question whether or not they were the expression of a predetermined and well defined intention on the part of the accused to shoot and kill the deceased. Under the principles already announced the refusal to give such an instruction was error.

The defendant’s counsel also offered to prove that the prisoner had been previously attacked by the deceased with a hatchet, and had had the deceased bound over to keep the peace. This proof should have been admitted, not for the purpose of excusing the subsequent conduct of the prisoner in shooting the deceased, but as tending to explain the threats made to Oster, and as tending to confirm the defendant’s own account of the nature and character of those threats.

For the errors herein indicated the judgment of the Circuit Court is reversed and the cause is remanded.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Chief Justice Shope Bailey, J.:

license: Public Domain

text:
    Kirk Hawes, Judge, v. The People ex rel. Emilie Pulver.

      Filed at Ottawa June 15, 1889.

    1. Mandamus—to compel the signing of a hill of exceptions—jurisdiction of Appellate Court. The Appellate Court has power to award a writ of mandamus, in furtherance of its appellate jurisdiction, to compel the trial judge to sign a bill of exceptions, when otherwise warranted. The jurisdiction of that court to award the writ depends upon the fact that the cause in which the writ is sought has been properly brought before it for review.
    2. Bills of exceptions — time of signing—mandamus to compel— power of judge in vacation. "Where a party presents his bill of exceptions to the judge who tried the case, for his signature, within the time prescribed for filing the same, he having done all that he can, will not be prejudiced by the neglect or refusal of the judge to sign the bill until after the time fixed for that purpose has expired.
    3. The matter of the settling and signing of bills of exceptions, when time for that purpose is given, may be regarded as continued by operation of the statute, in such sense, at least, as to vest the court with power over the subject at its next term, providing such term intervenes, and the court takes action before the period limited has expired.
    4. On the 9th of April the court allowed sixty days to the plaintiff in which to file a bill of exceptions. On June 1 following, a stipulation in writing was signed by the counsel of the parties, agreeing to an extension of thirty days for filing the bill of exceptions, and on the same day the court, being in session, by consent, ordered that the time of filing the bill be extended to July 9 then next. On June 22 of the same year the plaintiff presented his bill to the judge, who indorsed thereon the fact of its presentation, and directed the delivery of the same to defendant’s counsel, which was done. Some time in October the court settled the bill, but doubting his power, refused to sign and seal the same: Held, that it was the right and duty of the judge to have signed the same, and that he could be compelled to do so by mandamus.

    5. The judge of a court is powerless, in vacation, to change or extend an order for the filing of a bill of exceptions, even by the consent or stipulation of the parties. Settling a bill of exceptions, and fixing the time for filing the same, being judicial acts, which the judge has no power to perform in vacation, such power can not be given by consent, for the reason that jurisdiction, so far as it relates to the subject matter, can not be given by consent. When sitting as a court, the judge has jurisdiction of the subject matter, and may modify or change its former orders by consent of the parties.
    6. Amendment of record—at sub sequent term—by consent. The records of a court are not so far closed at the end of the term that the parties may not appear at a subsequent term, and by agreement authorize the court to open them and take further proceedings. A judgment or decree, by consent of the parties, may be opened or set aside at a subsequent term to its entry.
    Appeal from the Appellate Court for the First District.
    Messrs. Moses & Newman, for the appellant.
    Messrs. Kraus, Mayer & Stein, for the appellee.
   Mr. Chief Justice Shope

delivered the opinion of the Court:

This was a petition in the Appellate Court for the First District, praying for a mandamus against the respondent, Kirk Hawes, as judge of the Superior Court of Cook county, to compel him, as judge of said court, to sign and seal a bill of exceptions in a suit lately pending and determined in said court, before him, wherein Emilie Pulver, the relator, was plaintiff, and against the Rochester German Insurance Company. At a former term of this court a like petition was heard, upon appeal from the Appellate Court, and we then held, that the Appellate Court was without power to award the writ of mandamus, except in furtherance of its appellate jurisdiction, and that as no appeal had been taken, or writ of error prosecuted to the Superior Court, to reverse the original judgment, there was no authority to issue the writ, and the order of the Appellate Court awarding the writ was reversed.Subsequently, a writ of error was sued out of the Appellate Court by the relator to review said judgment of the Superior Court. A transcript of the record was filed therein, and a scire facias was issued, and served upon the defendant in error. Thereupon the present petition was filed, being in all essential particulars identical with the one first filed. Upon hearing, the Appellate Court awarded the writ, as, being in furtherance of its appellate jurisdiction and necessary to the hearing and determination of the cause in that court, it clearly had the power to do, if otherwise warranted. Hawes v. The People, 25 App. Court Rep. 326.

We have carefully examined the record, and considered the arguments of counsel, and are of opinion that the respondent, as judge of said Superior Court, was not only authorized, but required, by law, after having settled, as he did, the bill of exceptions tendered, to sign and seal the same. Ho good purpose can be subserved by a re-discussion of the .facts or principles involved, as we are entirely satisfied with the reasoning of the Appellate Court in its opinion filed upon consideration of the case made by the petition first presented, which is as follows:

Bailey, J.:

“This is an original proceeding in this court, by mandamus, to compel the respondent, one of the judges of the Superior Court, to sign and seal a bill of exceptions in a certain suit lately pending before him in said court.

“The facts, as shown by the petition, answer and affidavits, so far as we deem them material, are substantially as follows: On the 22d day of March, 1887, there was pending and undetermined in said court an action of assumpsit brought by Emilie Pulver, the relator, against the Rochester Herman Insurance Company, to recover her loss and damage by fire to certain personal property covered by a policy of insurance issued to her by said company. The trial of said cause was entered upon on the 22d day of March, 1887, and concluded on the 29th day of _the same month, the verdict of the jury being in favor of said company. On the 9th day of April, 1887, the relator’s motion for a new trial was overruled, and on the same day judgment was rendered by the court, the respondent presiding, against the relator, for costs. The relator thereupon prayed an appeal to this court, which was allowed on her filing her appeal bond in the sum of $300, to be approved by the court, together with her bill of exceptions, within sixty days from that date. On the first day of June, 1887, a stipulation in writing was entered into and signed by the attorneys of the insurance company and the relator, for and on behalf of their respective clients, by which it was agreed that the time for filing said bill of exceptions should be extended for the period of thirty days from and after the time originally limited by said court for the filing of the same, and on the same day, it being one of the days of the May term, 1887, of said court, an order was entered in said court, in said cause, in the following words: ‘On the stipulation of the parties hereto, it is ordered that the time for filing the appeal bond and bill of exceptions herein be and is hereby extended until the 9th day of July next.’ On the 22d day of June, 1887, the relator’s attorney, having completed his draft of the bill of exceptions, presented it to the respondent, and requested him to sign it, and the respondent thereupon took the bill and wrote thereon as follows: ‘Presented for signature June 22, ’87.—Hawes/ The respondent then directed that the bill be delivered to the attorney of the insurance company for examination, which was done. Various circumstances, which we do not deem it material to notice, prevented a meeting of said attorneys before the respondent to settle the bill of exceptions until some time in October, 1887, when all proposed amendments to said bill were passed upon and settled by the respondent, but, being in doubt as to his power to sign the bill at that time, he took that question under advisement until November 3, 1887, on which day he decided that he had no power to sign said bill, and refused so to do.

“If the respondent had power to sign the bill of exceptions, when it was presented to him on the 22d day of June, he should be required to sign it now. The rule is, that where a party presents his bill of exceptions to the judge who tried the cause, for his signature, within the time prescribed for-filing the same, he having thus done all he can, will not be prejudiced by thenegleet or refusal of the judge to sign the bill until after the time fixed for that purpose has expired. Underwood v. Hossack, 40 Ill. 98; Magill v. Brown, 98 id. 235; Village of Hyde Park v. Dunham, 85 id. 569; Hake v. Strubel, 121 id. 321.

“The time limited by the court for filing the bill of exceptions, at the time of entering judgment and granting the prayer for an appeal, expired on the 8th day of June; but before the expiration of that period, though at a subsequent term, by an order entered in term time, by express stipulation of the parties, the time was extended thirty days, and within the time as thus extended the bill of exceptions was presented to the respondent for his signature. The theory upon which his power to sign the bill on the 22d of June is denied, is, that at the adjournment of the term at which the final judgment was rendered, the record in the case was closed, and was no longer within the power of the court.

“It may be conceded, that in theory, at least, the record was closed at the expiration of the term; but that theory, so far as it relates to the bill of exceptions, is complied with by an enforcement of the rule of practice which requires that bills of exceptions, though in fact signed and sealed long after the term, should purport, on their face, to be signed and sealed at the term. While such is doubtless the theory, the actual fact, so far as it relates to the proceedings by which the bill is drafted, settled, signed and sealed, is, that those matters, which necessarily involve the exercise of both judicial and ministerial functions, are all to be performed after the term is closed. In this respect the record, though closed in theory at the end of the term, is not so in fact, and all the proceedings necessary to complete the record, so far, at least, as they involve the performance of judicial functions, are necessarily as completely ‘within the breast of the judge,’ until the bill is settled and signed, as are the records of the court during the term. The bill of exceptions, when signed and filed, is doubtless to be regarded as a part of the records of the term; but the proceedings by which that document is put into form and duly authenticated, are, at least so far as the practical fact is concerned, matters which are not closed at the adjournment of the term, but which are subsequent to the term, and which may be regarded, when the term of the court ends, as ‘pending and undisposed of.’ We see no reason, then, why the matter of settling and signing the bill of exceptions, where time for that purpose is given, may not be regarded as continued by operation of the statute, in such sense, at least, as to vest the court with power over the subject at its next term, providing such term intervenes, and the .court takes action before the period limited has expired.

“But the circumstances of this case do not require a decision of the question here suggested, as the extension of the time to file the bill of exceptions was granted by the court upon the express stipulation of the parties. It should be observed that no question is made as to the authority of the respective attorneys to enter into such stipulation for and on behalf of their clients. Such authority is averred in the petition, and is not denied or questioned by the answer or affidavits, and we do not understand counsel for the respondent as challenging such authority in the least. Furthermore, such authority must have been passed upon and found by the Superior Court on entering the order extending the time for filing the bill of exceptions, as the order recites that the extension of time was made on the stipulation of the parties, which could only be true upon the theory that the attorneys had competent authority to enter into the stipulation, so as to make their act, in law, the act of their clients.

“Whatever may have been the power of the court in the premises in the absence of a stipulation, we can not doubt that such power was given by the express consent of the parties themselves. The records of a court are not so far closed at the end of the term that the parties may not appear at a subsequent term, and, by agreement, authorize the court to open them and take further proceedings. Can it be doubted, for example, that where a judgment is entered by default at one term, the parties may appear at a subsequent term, and by stipulation authorize the court to set the judgment aside and give leave to the defendant to defend ? Or can it be doubted that where a decree of foreclosure is entered at one term, the parties may appear at a subsequent term, and by their agreement authorize the court to vacate the decree, and enter a new decree for a larger or smaller sum, or permit the whole case to be re-litigated ? We see no reason, either in law or in public policy, why any proceeding, however final or conclusive, where the rights of no third party have intervened, may not be opened by the court, where all the parties so agree, and the court be thus re-invested with jurisdiction to take further proceedings therein. So in this case, if all proceedings in relation to obtaining a bill of exceptions were to be regarded as closed at the expiration of the time limited by the court at the preceding term, the parties had clearly the power and the right, by agreement, to open them, and thus invest the court with power, hy an order entered in pursuance of their stipulation, to extend the time by granting a further period for filing the bill of exceptions.

“But it is said that the Supreme Court has,taken a different view of the law in the recent case of Hake v. Strabel, 121 Ill. 321. We do not so understand that case. There, sixty days were given to file the bill of exceptions, and, before that time had expired, the judge, in vacation, assumed to grant an extension of time, and the question presented was, whether a circuit judge, in vacation, has the power to extend the time for presenting and filing a bill of exceptions beyond the time fixed by the court at the term at which judgment was rendered, and still make the bill of exceptions a part of the record. The answering of this question in the negative in no way militates, against any of the views we have expressed. It can not be, and never has been, pretended, so far as we know, that a-judge, in vacation, in the absence of express statutory authority, can interfere with or change the records of the court over which he presides. Where the performance of particular duties-in vacation is, in conformity with recognized rules of practice, committed to him by an order entered in term time, he may perform those duties according to and within the terms of the order, but he can not modify or enlarge the order, and thus, extend his powers.

“The entry of orders in judicial proceedings are judicial acts, and must be performed by the court when in session, and not by a judge in vacation. As said in the case last cited: ‘The-making of the order allowing appeal, and fixing the amount of the bond, and the time in which the bond and bill of exceptions in the cause shall be presented and filed, is a judicial act, which can only be performed by the judge in term time, and when sitting as a court. The making of the order is an. exercise of judicial power vested in the presiding judge, but, the order, when made, is the order of the court. If, then, the original order of appeal, providing, inter aUa, within what time the bill of exceptions in the cause might be presented and filed, was a judicial act, which could only be performed by the judge in term time and when sitting as a court, as we have seen is-the ease, it follows that the act of changing such an order by entering another order extending the time in which the bill of exceptions in the cause might be presented and filed,—fourteen days,—would be of the same judicial character,—an ex-ereise of judicial power,—and such act could he performed by a judge only in term time.’

“It follows necessarily, from the same course of reasoning, that the judge was powerless to change the order in vacation, even by consent or stipulation of the parties. It being a judicial act, which the judge had no power to perform in vacation, such power could not be given by stipulation, upon the principle that jurisdiction, so far as it relates to the subject matter of judicial action, can not be given by consent. The same want of judicial power, however, does not exist where the judge is sitting as a court. There, the jurisdiction over the subject matter is given by law, and the judge has power to enter any proper order, where there is jurisdiction of the parties, either by the service of process or by voluntary consent.

“We are of the opinion that the respondent had the power to sign and seal the bill of exceptions, in the present case, at the time it was presented to him for his signature, and having the power, it was his duty so to do. It appearing that the bill of exceptions has been settled, and all disputes in respect to its contents decided, so that nothing remains to be done but the ministerial act of signing and sealing the document as prepared and settled, a peremptory writ of mandamus will be awarded, commanding the respondent to sign and seal the same.”

For the reasons stated, the judgment of the Appellate Court awarding the writ of mandamus is affirmed, and the writ will accordingly issue from that court.

Our attention is called by counsel for respondent to the character of argument resorted to in this cause, and we are asked to protect counsel from language calculated to provoke violence or common retort, and thereby preserve the dignity of the profession and prevent contempt of the courts. Until the offense of counsel has become so flagrant that we have felt compelled to strike printed briefs or arguments from the files for that reason, we have not regarded it as our duty to take notice of infractions of professional courtesy and ethics. It should, however, be said, that attacks upon the personal or professional character of opposing counsel, or upon their conduct during the progress of a cause, unwarranted by the facts shown in the record, subserve no good purpose to the party making them, before this tribunal. Ordinarily, not only has this court received at the hands of the profession the highest consideration and courtesy, but we have been glad to observe that the relations of the bar, each to the other, have been marked by a like sense of professional propriety. The departures from the personal and social amenities of the profession have been rare. A sense of what is due the profession, as well as to the courts, of which they are officers, should admonish counsel to suppress exhibition of all personal animosity, and to restrain them within the limit of respectful and courteous argument. This the court has the right to expect, and in so far as it has power, will promote and enforce.

Judgment affirmed.


author: Mr. Justice. Bailey

text:
    The Chicago and Northwestern Railway Company v. Annie Dunleavy, Admx.

      Filed at Ottawa June 15, 1889.

    1. Negligence—persons on right of way—general duty of railroad companies. It can not be said that railroad companies owe no duty of care to those who are rightfully on their right of way, even though the general public be excluded therefrom.
    2. Same—speed of railroad trains in cities. The running of a railway train at a speed of thirty-five to forty miles an hour at the place of an accident, in a thickly settled portion of a large city, is of itself a fact for the consideration of a jury, as tending to show negligence on the part of the railway company operating the same, and is sufficient to justify an inference to that effect.

      3. In an action against a railway company for negligently killing a person in a large and populous city, the defendant asked the court to instruct the jury, that as a matter of law applicable to the case under the pleadings, the company had a right to run its engine and train, at the time and place of the injury, at any rate of speed consistent with the safety of its employes and the property on its train,—which was refused. The declaration showed no ordinance in relation to the speed of trains in the city: Held, that the instruction was properly refused, as wholly ignoring the common law duty of the company to regulate the speed of its trains with regard to the public safety.
    4. Railway companies, where there is no express statute or ordinance on the subject, are bound by the rules of the common law to exercise their franchises with a due regard to the interests, the welfare and' safety of the public. They are not at liberty to adopt the same rates of speed in a densely settled city as in the country, though such speed therein may be as safe for employes and property on their trains as in the country.
    5. Same—railroad signals in a city—failwre to ring a bell. Proof of a city ordinance requiring railway companies to ring a bell continuously while their trains are in motion within the city, and the testimony of witnesses tending to show that no bell was rung by those in charge of a train at the place of an accident, or other warning given, until after a person was struck, tending to show the breach of an ordinance, is a sufficient basis for an inference by the jury, of negligence.
    6. Same—contributory and comparative negligence—presumption. In an action against a railway company to recover for the killing of a person while lawfully on the company’s track, the defendant asked the court to instruct the jury to the effect that if the deceased could, by the exercise of ordinary care and prudence on his part, have seen or ascertained the approach of the train in time to avoid the accident, even if the necessary signals were not given by the company or its servants in charge of the train, then it was immaterial whether such signals were given or not, and the neglect to give them would not furnish sufficient ground for a recovery: Held, that the instruction was properly refused.
    7. In the same case the court instructed the jury, that if the deceased, by the exercise of ordinary care, could have seen the approach of the train, then the law made it his duty to see it, and that if he failed in such duty, his failure would bar a recovery, unless the evidence showed that the defendant or its servants were guilty of negligence so gross as to amount to a willful disregard of the rights or the safety of the public : JHeM,that the proper rule as to comparative negligence was stated in the instruction with substantial accuracy, and was as favorable as the defendant had a right to ask.

      8. The defendant asked the court to instruct the jury, that if they believed, from the evidence, that if the deceased had looked and listened for approaching trains, he could, by the exercise of either of these faculties, have discovered the approaching engine in time to avoid the accident, the presumption of law would be that he did know of the approach of said engine,—which was refused: Held, that the instruction was clearly erroneous, there being no legal presumption by virtue .of which the deceased, if he could have discovered the approaching train by either looking or listening, must be deemed to have actually known that the engine was approaching, nor is there any rule of law which, under the circumstances stated, would treat him as though he had actual knowledge of its approach.
    9. A failure to look or listen, especially when it affirmatively appears that looking or listening might 'have enabled the party exposed to injury to see the-train, and thus avoid being injured, is evidence tending to show negligence, but it is not conclusive evidence, so that a charge of negligence can be predicated on it as a matter of law. There may be circumstances excusing the party from looking or listening, and that being so, the mere failure to look or listen can not be pronounced negligence per se.

    10. Special vebdicts—special binding oe eaots—distinction—requisites—form, etc. The recent statute, so far as it relates to special verdicts, is merely declaratory of the common law. It has been competent for juries, since the statute of 13 Edw. 1, to find a general verdict, or, when they have any doubt as to the law, to find a special verdict, and refer the law arising thereon to the decision of the court.
    11. The jury in a special verdict must find the facts, and not the mere evidence of facts, so as to leave nothing for the coiu-t to determine except questions of law. All the facts essential to the right of the party in whose favor the judgment is to be rendered must be found. Finding sufficient evidence, prima facie, to establish such facts, is not sufficient. But if probative facts are found from which the court can declare that the ultimate facts necessarily result, the finding will be sufficient. Such a verdict can not be aided by intendment, and, therefore, any fact not ascertained by it will be presumed not to exist.
    12. By a special verdict, the jury, instead of finding for either party, find and state all the facts at issue, and conclude conditionally, that if, upon the whole matter thus found, the court should be of opinion that the plaintiff has a good cause of action, they then find for the plaintiff, and assess his damages; if otherwise, then for the defendant.
    13. A special finding by the jury upon material questions of fact submitted to them under our recent statute, is not a special verdict, but an essentially different proceeding. A special verdict can not be found when there is a general verdict, but the special findings of fact provided for by the statute can be required only in case a general verdict is rendered. As both forms of verdict are provided for by the same statute, they must be construed together as being in pari materia.

    14. The material questions of fact authorized to be submitted to the jury are not such as relate to mere evidentiary facts, but they are restricted to those ultimate facts upon which the rights of the parties •directly depend. Requiring the jury to find mere probative facts would be merely requiring them to find the evidence, and not the facts they may tend to prove. Doubtless a probative fact from which the ultimate fact necessarily results would be material, as then the court could infer such ultimate facts as a matter of law.
    15. The provision of the statute, that when a special finding of fact is inconsistent with the general verdict the former shall control, necessarily implies that the fact to be submitted shall be one which, if found, will in its nature be controlling,—which can never be the case with a mere evidentiary fact. A fact which merely tends to prove a fact in issue, without actually proving it, can not be said to be, in any legal sense, inconsistent with a general verdict, whatever that may be.
    16. The common law requires the unanimous consent of all the jurors to their verdict. Upon all matters which they are required to find they must be agreed, but the jurors are not required to reach their conclusions by the same method of reasoning. To require unanimity, not only in the result, but also in each of the successive steps leading to ■such result, would be practically destructive of the system of jury trials. For this reason a party has no right, under the guise of submitting •questions of fact to the jury, to require them to give their views upon each item of evidence, and thus practically subject them to a cross-examination.
    17. In an action against a railway company to recover for the death of a person through negligence, the defendant-asked the court to submit this special question to the jury: “"What precaution did the deceased take to inform himself of the approach of the train which caused the injury?” Held, that what the deceased did to inform himself of the ■approach of the train was material only as tending to show reasonable ■care on his part, or the want of it; that his acts in that behalf were facts which were merely evidentiary in their nature, and that the question was properly refused.
    18. The court, in place of the question above given, substituted and submitted in its stead this: “Was the deceased exercising reasonable care for his own safety at the time he was killed?” Held, that the question substituted by the court submitted a material and controlling fact, •and one that could properly be made the subject of .a special finding.
    19. In the same case the jury were specially asked these questions: "Did the deceased look to ascertain if the train in question was appreaching?” “Bid the deceased listen to ascertain if said train was. approaching?” The jury answered both, “Bon’t know:” Held, questionable if objection to the form of the answer was not waived by failure to interpose the same before the jury was discharged; also, that the questions called for a finding of merely evidentiary facts, and therefore-a negative answer could not have affected the general verdict.
    20. This court can not look to the evidence to determine whether special findings of the jury are inconsistent with the general verdict, so that the latter must be held to be controlled by the former. All reasonable presumptions will be entertained in favor of the verdict, while nothing will be presumed in aid of the special findings of fact. The inconsistency must be so irreconcilable as to be incapable of being removed by any evidence admissible under the issues.
    21. Insteuction—repeating. There is no substantial error in the refusal of a proper instruction, when others stating the same legal principle in a different form, but as available for the party complaining, are given.
    22. Pbactice—directing what the verdict shall be. The asking of an instruction to find for the defendant is in the nature of a demurrer to the evidence, and is equivalent to an admission upon the record of every fact' and every conclusion in favor of the opposite party which the evidence conduces to prove,—in other words, every fact which the-jury might have inferred from it in favor of such opposite party. Such an instruction should not be given except when there is a substantial failure of evidence tending to prove the plaintiff’s cause of action, or some material fact necessary to establish it.
    23. In considering the propriety of an instruction to find for the defendant, the court has nothing to do with any question as to the preponderance of the evidence, or the credibility of the witnesses, or the force to be given to the evidence having a tendency merely to impeach their veracity. The only question is, whether any evidence was given, which, if true, tended to support a verdict for the plaintiff.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. John P. Altg-eld, Judge, presiding.
    Mr. W. C. Goudy, and Mr. W. B. Keep, for the appellant t
    Where the whole evidence is insufficient to support a verdict for the plaintiff, it is the duty of the court to instruct the jury to find for the defendant. Phillips v. Dickerson, 85 Ill. 15; Reed v. Deerfield, 8 Allen, 5'24; Simmons v. Railroad Co. 110 Ill. 346; Martin v. Chambers, 84 id. 579; Frazer v. Howe, 106 id. 573; Railroad Co. v. O’Conner, 115 id. 261; Doane v. Lockwood, id. 492; Bartelott v. Bank, 119 id. 269.
    In the following eases the practice seems to have been to entertain the motion after hearing the evidence of the defendant : Reed v. Deerfield, 8 Allen, 524; Improvement Co. v. Munson, 14 Wall. 342; Randall v. Railroad Co. 109 U. S. 478; Herbert v. Butler, 97 id. 318. And that practice is recommended by this court in City of Mattoon v. Fallin, 113 Ill. 249.
    The regulation requiring a bell to be rung, being intended for the protection of persons on the highway, the failure to give the notice thereby prescribed is not negligence as to the railway servants working on the line; nor as to trespassers on the line; nor as to persons who, although on the highway, are not intending to cross the line; nor as to passengers in trains; nor as to travelers approaching the line on a private way or in a blind alley; nor as to travelers approaching the line on a private way running through railway yards; nor as to one who ties his team on the highway near a crossing. Patterson on Railway Accident Law, sec. 160; Railroad Co. v. Eininger, 114 Ill. 79.
    The court erred in refusing to require the jury to answer certain questions of fact, and the finding on the second and third propositions is equivalent to finding a want of due care by the deceased.
    As to the duty of a person going upon the track, to use his eyes and ears to learn whether a train is approaching, and his negligence in not doing so, see Tolman v. Railroad Co. 98 N. Y. 202; Wilcox v. Railroad Co. 39 id. 361; Williams v. Railway Co. 64 Wis. 1; Bower v. Railway Co. 61 id. 457; Railroad Co. v. McKean, 40 Ill. 236; Railroad Co. v. Jacobs, 63 id. 179; Railroad Co. v. Bell, 70 id. 102; Railroad Co. v. Houston, 95 U. S. 697.
    The court erred in the refusal of instructions asked by the defendant. '

      Mr. M. L. Knight, and Mr. Joseph S. Kennabd, for the appellee:
    As to the law applicable to this case, it is contended that it is not obligatory upon the appellant to ring the bell at viaducts. It is held by the Supreme Court of Illinois that it is dangerous and gross negligence to drive trains at a high rate of speed in any portion of populous towns and cities. Railway Co. v. Knutson, 69 Ill. 103; Railway Co. v. Ryan, 70 id. 211; Railroad Co. v. Engel, 84 id. 397; Railway Co. v. Harmon, 47 id. 298; Railroad Co. v. Dickson, 63 id. 151.
    The special findings, as a whole, are consistent, and show that legal and proper conclusions were reached.
    This court will not reverse when substantial justice has been done. Jones v. Railroad Co. 68 Ill. 381; Railway Co. v. Ryan, 70 id. 212; Railroad Co. v. Hutchinson, 120 id. 587; Railroad Co. v. Haskins, 115 id. 300.
   Mr. Justice. Bailey

delivered the opinion of the Court:

This was an action on the case, brought by Annie Dunleavy, administratrix of the estate of John Dunleavy, deceased, against the Chicago and Northwestern Bailway Company, to recover damages under the statute for the death of the plaintiff’s intestate. The declaration consisted of nine counts, to the fifth, sixth and seventh of which a demurrer was sustained. To the remaining counts the defendant pleaded not guilty, and on trial before the court and a jury, the issues were found for the plaintiff and her damages assessed at $1800, and for that sum and costs, the court, after denying the defendant’s motion for a new trial, gave judgment for the plaintiff. Said judgment was affirmed by the Appellate Court on appeal, and by a further appeal the record is now brought to this court.

The first count of the declaration alleges that the defendant, on the 26th day of July, 1886, by its servants, ran one of its locomotive engines with a train of freight cars thereto attached, from east to west over one of its tracks under a viaduct at Blue Island avenue, in the city of Chicago; that the plaintiff’s intestate was then and there in the employ of said city cleaning and painting the iron columns, etc., of said viaduct, and that “the said train was, by and through the negligence, carelessness and improper conduct of the said defendant, through its servants in the premises, run at a high and dangerous rate of speed,” and that while being so run, it was driven against and upon said Dunleavy, whereby he was instantly killed. The second count alleges that the defendant, through its servants, “so carelessly, improperly and unskillfully managed and conducted said engine and train, that the said John Dunleavy was forcibly knocked down by said engine and train” and thrown under the wheels of the train and instantly killed. The third count sets up an ordinance of said city requiring the bell of each locomotive engine to be rung continually while running within the city, and alleging that the defendant’s servants in charge of said train failed to comply with said ordinance, and that in consequence of such failure said Dunleavy was killed. The fourth count is substantially like the second. The eighth count alleges that the engineer and fireman could, by looking, have seen Dunleavy standing at his work, and by sounding a whistle have given him notice of the approach of a train, but that they failed to sound the whistle, and that in consequence of such failure said Dunleavy was killed. The ninth count alleges substantially the same act of negligence as the .eighth, though in different language. Bach count alleges in proper form that Dunleavy at the time he was killed, was in the exercise of due care.

At the close of the trial the counsel for the defendant asked the court to instruct the jury that the evidence in the case was insufficient to sustain a verdict for the plaintiff, and that their verdict should therefore be for the defendant. This instruction the court refused to give, and such refusal is assigned for error.

A prayer for an instruction of this character is in the nature of a demurrer to the evidence, and is equivalent to an admission upon the record of every fact and every conclusion in favor of the opposite party which the evidence conduces to prove, in other words, every fact which the jury might have inferred from it in favor of such opposite party. Such instruction should not therefore he given except where there is a substantial failure of evidence tending to prove the plaintiff’s cause of action, or to prove some material fact necessary to establish it.

The instruction asked was based upon the theory that there was a substantial failure of evidence tending to prove the negligence charged against the defendant. In considering the propriety of said instruction, we have nothing to do with any question as to the preponderance of the evidence, or the credibility of the witnesses, or the force to be given to the evidence having a tendency merely to impeach their veracity. The only question is, whether any evidence was given which, if true, would have tended to support a verdict for the plaintiff.

Upon the question of the speed of the train at the time Dunleavy was killed, the witnesses for the plaintiff testified that it was moving very fast, some of them fixing the speed at from thirty to thirty-five miles per hour. Such speed, at the place where the accident happened, in a thickly settled portion of a great city, was of itself a fact for the jury to consider as tending to show that the defendant was guilty of negligence, and was sufficient to justify an inference to that effect. The city ordinance requiring a bell to be rung continually while the train was in motion at the place in question was proved, and the testimony of a number of the plaintiff’s witnesses tended to show that no bell was rung or other warning given until after Dunleavy was struck. This evidence, tending as it did to show a breach of a municipal ordinance, was also a sufficient basis for an inference by the jury of negligence. The circumstances under which the plaintiff’s intestate was killed, and which need not here be stated in detail, clearly tended to establish a causal relation between such acts of negligence and the collision which resulted in his death. There was also evidence, partly direct and partly circumstantial, tending to show the exercise of ordinary care on the part of the deceased. Manifestly then the case was not one where a demurrer to the evidence could have been sustained, and the court therefore properly refused to instruct the jury to find a verdict for the defendant.

The next questions to be considered are those which relate to the special findings of the jury. Upon this branch of the case it is urged, first, that the court improperly refused to submit certain questions of fact to the jury; second, that certain of the questions of fact submitted were not properly answered; and, third, that the special findings of fact are inconsistent with the general verdict. The statute under which special findings may be required is but recent, and the rules of practice thereby established have never before been presented to this court for its consideration. We must therefore look mainly to the statute itself for our guide in determining the propositions now raised. The statute is as follows:

Section 1. “That in all trials by jury in civil proceedings in this State in courts of record, the jury may render, in their discretion, either a general or a special verdict; and in any case in which they render a general verdict, they may be required by the court, and must be so required on request of any party to the action, to find specially upon any material question or questions of fact which shall be stated to them in writing, which questions of fact shall be submitted by the party requesting the same to the adverse party before the commencement of the argument to the jury.

Sec. 2. “Submitting or refusing to submit a question of fact to the jury when requested by a party as provided by the first section hereof may be excepted to and be reviewed on appeal or writ of error as a ruling on a question of law.

Sec. 3. “When the special finding of fact is inconsistent with the general verdict, the former shall control the latter and the court may render judgment accordingly. ”

This statute, so far as it relates to special verdicts, is merely declaratory of the common law. It has been competent for juries at common law, since the statute of 13 Edward 1, to find a general verdict, or when they have any doubt as to the law, to find a special verdict, and refer the law arising thereon to the decision of the court. By a special verdict, the jury, instead of finding for either party, find and state all the facts at issue, and conclude conditionally, that if upon the whole matter thus found, the court should be of the opinion that the plaintiff has a good cause of action, they then find for the plaintiff, and assess his damages; if otherwise, then for the defendant. 2 Tidd’s Practice, (Am. ed.) 897, and note.

The rules of law as to special verdicts and their requisites have long been settled both in this country and in England. Thus, it is held that they should find facts, and not the mere evidence of facts, so as to leave nothing for the court to determine except questions of law. Vincent v. Morrison, Breese, 227; Brown v. Ralston, 4 Band. 504; Seward v. Jackson, 8 Cow. 406; Henderson v. Allens, 1 Hen. & Mun. 235; Hill v. Covell, 1 N. Y. 522; Langley v. Warren, 3 id. 327; Kinsley v. Coyle, 58 Pa. St. 461; Thompson v. Farr, 1 Spears, 93; Leach v. Church, 10 Ohio St. 149; LaFrombios v. Jackson, 8 Cow. 589. To authorize a judgment upon a special verdict, all the facts essential to the right of the party in whose favor the judgment is to be rendered, must be found by the jury; finding sufficient evidence, prima facie, to establish such facts, is not sufficient. Blake v. Davis, 20 Ohio, 231; Hambleton v. Dempsey, id. 168. If probative facts are found from which the court can declare that the ultimate facts necessarily result, the finding is sufficient. Alhambra Addition Water Co. v. Richardson, 72 Cal. 598; Coveny v. Hale, 49 id. 552. A special verdict cannot be aided by intendment, and therefore any fact not ascertained by it will be presumed not to exist. Lee v. Campbell, 4 Porter, 198; Zumull v. Watson, 2 Munf. 283; Lawrence v. Beaubun, 2 Bailey, 625.

It is manifest of course that a special finding by a jury upon material questions of fact submitted to them under the provisions of the statute is not a special verdict, but an essentially different proceeding. . A special verdict cannot be found where there is a general verdict, but the special findings of fact provided for by the statute can be required only in case a general verdict is rendered. But while this is so, much light in relation to special findings upon questions of fact, and their office and objects, may be derived from the rules applicable to special verdicts. Both forms of verdict are provided for by the same statute, and they must therefore be construed as being in pari materia.

In giving construction to the statute, the first, and perhaps the most important question, relates to the scope and meaning of the phrase, “material question or questions of fact.” May such questions relate to mere evidentiary facts, or should they be restricted to those ultimate facts upon which the rights of the parties directly depend? Evidently the latter. Not only does this conclusion follow from analogy to the rules relating to special verdicts, but it arises from the very nature of the case. It would clearly be of no avail to require the jury to find mere matters of evidence, because, after being found, they would in no way aid the court in determining what judgment to render. Doubtless a probative fact from which the ultimate fact necessarily results would be material, for there the court could infer such ultimate fact as a matter of law. But where the probative fact is merely prima facie evidence of the fact to be proved, the proper deductions to be drawn from the probative fact presents a question of fact and not of law, requiring further action by the jury, and it cannot therefore be made the basis of any action by the court. Bequiring the jury to find such probative fact is merely requiring them to find the evidence and not the facts, and results in nothing which can he of the slightest assistance to the parties or the court in arriving at the proper determination of the suit.

The view we take is strongly fortified by the provision of the third section of the statute, that, when a special finding of fact is inconsistent with the general verdict, the former shall control. This necessarily implies that the fact to be submitted shall be one which, if found, may in its nature be controlling. That can never be the case with a mere evidentiary fact.” A fact which merely tends to prove a fact in issue without actually proving it, can not be said to be, in any legal' sense, inconsistent with a general verdict, whatever that verdict may be. Such inconsistency can arise only where the fact found is an ultimate fact, or one from which the existence or nonexistence of such ultimate fact necessarily follows, and that is never the case with that which is only prima facie evidence of the fact sought to be proved.

The common law requires that verdicts shall be the declaration of the unanimous judgment of the twelve jurors. Upon all matters which they a’re required to find they must be agreed. But it has never been held that they must all reach their conclusions in the same way and by the same method of reasoning. To require unanimity not only in their conclusions but in the' mode by which those conclusions are arrived at would in most cases involve an impossibility. To require unanimity therefore, not only in the result but also in each of the successive steps leading to such result, would be practically destructive of the entire system of jury trials. To illustrate, suppose a plaintiff trying his suit before twelve jurors, should seek to prove a fact alleged in his declaration by giving evidence of twelve other facts, each having an independent tendency to prove the fact alleged. The evidence of each probative fact, or the conclusions to be drawn from it, might appeal with peculiar force to the belief or judgment of some one of the jurors, but less so to his fellows. The cumulative effect of all the evidence might be such as to leave no doubt in the mind of any member of the panel as to the truth of the fact alleged, still, if the jury were required to find specially as to each probative fact, no one of the twelve facts would be at all likely to meet with the unanimous concurrence of the entire jury. As to each they would be compelled to confess their inability to agree, or what would be its equivalent, say they did not know or could not tell, which, if we apply the rules governing special verdicts, would be tantamount to a finding that the fact was' not proved or did not exist. If such finding should be required, and should be given the effect of controlling the general verdict, the result would be, that under such system of trial, general verdicts could but seldom stand.

However natural the curiosity parties may have to know the precise course of reasoning by which jurors may arrive at verdicts either for or against them, they have no right, under guise of submitting questions of fact to be found specially by the jury, to require them to give their views upon each item of evidence, and thus practically subject them to a cross-examination as to the entire case. Such practice would subserve no useful purpose, and would only tend to embarrass and obstruct the administration of justice; and we may further say that such practice finds no warrant in our statute.

We are referred to one case in another State, where, in a suit for personal injuries against a railroad company, the defendant was permitted, under a statute somewhat similar to ours, to put to the jury no less than one hundred and thirty-six interrogatories as to the facts, covering, apparently every possible phase of the evidence. The judgment against the railroad company was reversed for an erroneous instruction to the jury as to the form of their answer to questions where the evidence was not sufficient, but no suggestion seems to have been made that any portion of the questions put to the jury were improper. Whatever may be the view of such practice taken by the courts of other States, we are unwilling to give-our countenance to its adoption here.

In the present ease the defendant’s counsel prepared and submitted fifteen questions of fact upon which the court was-asked to require the jury to make special findings. Of these the eleventh and twelfth were refused. The first was modified and submitted to the jury in its modified form. The residue of the questions were submitted as asked. We do not understand that the defendant is now complaining of the action of the court in relation to its eleventh and twelfth questions of fact. The first, as prepared by the defendant’s counsel, was as follows:

1. “What precaution did the deceased take to inform himself of the approach of the train which caused the injury?" This was modified by the court so as to read as follows:

1. “Was the deceased exercising reasonable care for his. own safety at the time he was killed ?”

The ultimate fact which it was incumbent upon the plaintiff to prove, and which the defendant sought to disprove, was, that the deceased, at the time he was killed, was in the exercise of due care. That was one of the issues made by the pleadings, and it was one of the ultimate facts upon which the plaintiff’s right to recover necessarily depended. What the-deceased did to inform himself of the approach of the train was material only as tending to show reasonable care on his part or the want of it. His acts in that behalf, then, whatever they may have been, were facts which were merely evidential in their nature, and while they doubtless would have had a tendency to prove reasonable care or the contrary, there were none of them, so far as the evidence shows, which would have been conclusive of that question. The question, then, as submitted by the defendant’s counsel, sought to obtain a finding as to mere probative facts, and the court therefore properly refused to require the jury to answer it. The question substituted by the court submitted to the jury a material and controlling fact, and one which could be properly made the subject of a special finding.

Complaint is made to the answers given by the jury to the fourth and fifth questions. Those questions were as follows:

4. “Did the deceased look to ascertain if the train in question was approaching ?

5. “Did the deceased listen to ascertain if said train was approaching ?”

To both of these questions the jury answered: “Don’t know.” It is perhaps questionable whether the defendant, in order to avail itself of the objection that no proper answer was made to these questions, should not have made it at the time the verdict was returned and before the jury were discharged, for then the jury might have been required to complete their verdict by making proper answers. Moss v. Priest, 19 Abb. Prac. 314. But however that maybe, it is manifest that the error, if it be one, cannot have been prejudicial to the defendant unless it can be seen that answers to said questions most favorable to the defendant, which of course would have been answers in the negative, would have constituted a finding inconsistent with the general verdict.

If then we treat said questions as having been answered in the negative, would such answers, either alone or in connection with the answers to the other questions, have constituted a finding necessarily inconsistent with the general verdict ? To the second question, viz., “If the deceased had looked before the accident, could he have discovered the approach of the train in time to have avoided the accident ?” the jury answered, “Yes,” and to the third question, viz., “If the deceased had listened before the approach of said train, could he have discovered the approach of the train in time to have avoided the accident?” they answered, “If he had concentrated his attention in that particular direction, yes.” The first question, viz., “Was the deceased exercising reasonable care for his safety at the time he was killed?” was also answered, “Yes.”

The question then presents itself, whether, if it be admitted that the deceased neither looked or listened for the train, and also that if he had looked he could have seen it, and if he had listened with his attention concentrated in that direction, he could have heard it in time to avoid the accident, such facts would constitute such conclusive proof of contributory negligence on the part of the deceased as would have barred a re-recovery. Undoubtedly a failure to look or listen, especially where it affirmatively appears that looking or listening might have enabled the party exposed to injury to see the train and thus avoid being injured, is evidence tending to show negligence. But they are not conclusive evidence, so that a charge of negligence can be predicated upon them as a matter of law. There may be various modifying circumstances excusing the party from looking or listening, and that being the case, a mere failure to look or listen cannot, as a legal conclusion, be pronounced negligence per se.

In determining whether the special findings are inconsistent with the general verdict so that the latter must be held to be controlled by the former, this court cannot look at the evidence. All reasonable presumptions will be entertained in favor of the verdict, while nothing will be presumed in aid of the special findings of fact. The inconsistency must be irreconcilable, so as to be incapable of being removed by any evidence admissible under the issues. Pennsylvania Co. v. Smith, 98 Ind. 42; McComas v. Haas, 107 id. 512; Redelsheimer v. Miller, id. 485. Under these principles it must be held that there is no necessary or irreconcilable inconsistency between the special findings and the general verdict, especially in view of the fact that the jury, notwithstanding their finding that the deceased did not look or listen, also found that he was in the exercise of reasonable care.

Complaint is made of the refusal of the court to give to the jury certain instructions asked on behalf of the defendant. Two of the instructions so refused are the following:

7. “The jury are instructed, as a matter of law, that if you believe, from the evidence, that the deceased could, by the exercise of ordinary care and prudence on his part, have seen or ascertained the approach of the train in time to have avoided the accident, even if the necessary signals were not given by the defendant, or its servants in charge of the train, then and in that case, it is immaterial whether such signals were given or not, and any neglect to give them, on the part of the defendant, would not furnish sufficient ground for a recovery.

12. “The jury are instructed, as a matter of law, that if you believe, from all the evidence in this case, that if the deceased had looked and listened for approaching trains, he could, by the exercise of either of these faculties, have discovered the approaching engine in time to have avoided the accident, the presumption of law would be that he did know of the approach of said engine. When a person can see they must see, and it will not avail them to say they did not.”

Of these instructions, the seventh is based upon the theory that if the deceased failed to exercise ordinary care to see and ascertain the approach of the train, such negligence was sufficient to bar a recovery, wholly irrespective of the degree of negligence of which the servants of the defendant may have been guilty in failing to give the requisite signals; that is to say, even though the defendant’s servants may have been guilty of negligence in that behalf so gross as to amount to a wanton or reckless disregard of the safety of the deceased or of the public. That such is not the law is too well established to require the citation of authorities. The proper rule was laid down with substantial accuracy in the thirteenth instruction given at the instance of the defendant, in which it was held, that if the deceased, by the exercise of ordinary care, could have seen the approach of the train, then the law made* it his duty to see it, and that if he failed in such duty, his failure would bar a recovery, unless the evidence showed that the defendant or its servants were guilty of negligence so gross as to amount to a willful disregard of the rights or safety of the public. By this latter instruction the law was laid down as favorably for the defendant as it had a right to ask, and the seventh instruction was therefore properly refused.

The twelfth instruction was clearly erroneous. There is no legal presumption by virtue of which the deceased, if he could have discovered the approaching engine by either looking or listening, must be deemed to have actually known that the engine was approaching; nor is there any rule of law which, under the circumstances here supposed, would treat him as though he had actual knowledge of its approach. Failing to ascertain the approach of the engine when the means of doing so were within his reach would be mere negligence, but failing to get out of the way of the engine when he actually knew of its approach would be suicide.

The following instruction, the seventeenth of those asked by the. defendant, was also refused :

“The jury are instructed, as a matter of law, that if you believe, from the evidence in this case, that both the plaintiff and the agents and servants of the defendant were guilty of gross negligence contributing to the injury complained of in • this case, your verdict should be for the defendant.”

This instruction contained a proposition of law which has been frequently approved by this court, but we are of the opinion that, in view of the rules laid down in various of the instructions given, the defendant could not have been materially prejudiced by its refusal. By the fourth instruction the jury were told that, if the plaintiff had failed to prove that the deceased was in the exercise of ordinary care and prudence for his own safety, she could not recover. The legal effect of a want of ordinary care on the part of the deceased was thus stated in a form just as available for the defendant as it was in the instruction refused. The sixth instruction held, as a matter of law, that ordinary care, when one is surrounded by dangers and his position exposes him to impending disaster, involves the exercise of the highest degree of yigilanee and care, and that the deceased was hound to exercise that degree of care, and that if by its exercise he might have avoided injury, the plaintiff could not recover. In various of the other instructions given, the effect of the negligence of the deceased upon the plaintiff’s right to recover was stated, and we think, therefore, that the jury were fully instructed on that question, and that the instruction refused could have given them no material information or assistance not embodied in the other instructions.

The only other ruling of the court in relation to the instructions of which complaint is now made, is its refusal to give the defendant’s twentieth instruction, which was as follows:

“The jury are instructed, as a matter of law applicable to this case, that under the pleadings in this case, the defendant, the railway company, had a right to run its engine and train, at the time and place of injury to the deceased, at any rate <of speed consistent with the safety of its employes and the property on its train.”

The declaration contains no averment of any municipal ordinance of the city of Chicago in relation to the speed of trains. But it cannot be admitted that, in the absence of such ordinance, a railroad company has no duty on that subject to the public. It may be as safe for the employes and property on its train to run its trains thirty, forty or fifty miles an hour through a populous city like Chicago as in the country, but no one would claim that so doing would not be highly dangerous to the general public, or that a railroad company, even in the absence of all municipal regulation, would be at liberty to .adopt the same rates of speed in the city as in the country. Eaikoad companies, where there is no express statute or ordinance, are bound by the rules of the common law to exercise their franchises with a due regard to the interests, the welfare and safety of the public, and in fixing the rate of speed at which their trains may be run, the public safety is a matter which is always entitled to be taken into consideration.

But it is said that at the place where the deceased was killed the general public had no right to be. This may be admitted, but it is nevertheless true that the deceased was rightfully there, and had been working there for such length of time as raises some implication of notice to the defendant of his presence there and of his employment. It cannot be-said that railroad companies owe no duty of care to those whe are rightfully upon their right of way, even though the general public be excluded therefrom. As the twentieth instruction was, in effect, a denial of such duty, not only to the general public but also to the deceased, it was properly refused.

We are of the opinion that the record contains no material error, and the judgment of the Appellate Court will therefore be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield Mr. Justice Baker,

text:
    The Village of Carterville v. Samuel Cook.

      Filed at Mt. Vernon June 17, 1889.

    1. Negligence&emdash;concwrring negligence of d/ifferent parties&emdash;who shall be liable. If a person, while exercising due care for his personal safety, be injured by the combined result of an accident and the inadvertent or careless act of another, or the negligence of a city or village, and the injury would not have been sustained but for such negligence of the-city or village, yet, although the accident or wrongful act of the third person be the primary cause of the injury, if it was such as common prudence could not have foreseen and avoided, the negligent city or village will be liable for the injury.
    2. So where a boy about fifteen years old, while, in the observance of ordinary care for his own safety, passing along a much used sidewalk of a village, was, by reason of the inadvertent or negligent shoving by one boy of another boy against him, jostled or pushed from the sidewalk at a point where it was elevated some sixf eet above the ground, and where it was unprotected by railing or other guard, and he was thereby seriously injured, it was held, that the village was liable to the party so injured, in damages, notwithstanding the primary cause of his. injury was the act of the other boy.

      / Appeal from the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Williamson county; the Hon. David J. Baker, Judge, presiding.
    Mr. J. M. Washburn, and Mr. W. W. Barr, for the appellant:
    A municipal corporation may determine for itself to what extent it will guard against mere possible accidents. 2 Dillon on Mun. Corp. sec. 1005; Lansing v. Toolon, 37 Mich. 132; Freeport v. Isbell, 83 Ill. 440.
    Want of railings is not negligence per se. Staples v. Canton, 69 Mo. 592; Fairbury v. Rogers, 2 Bradw. 96; Grayville v. Whitaker, 85 Ill. 439,
    It is only required to keep its sidewalks in a reasonably safe condition. Centralia v. Kronse, 64 Ill. 19; Chicago v. McGiven, 78 id. 347; Chicago v. Bixby, 84 id. 84; Bloomington v. Read, 2 Bradw. 542.
    It is not liable for an injury caused by the combined effect of the unsafe condition of a highway and the unlawful or careless acts of a "third person. Sheppard v. Chelsea, 4 Allen, 113; Rowell v. City of Lowell, 7 Gray, 103; Rockford v. Tripp, 83 Ill. 248; Marble v. Worcester, 4 Gray, 395; Quincy v. Barker, 81 Ill. 300; Lovenguth v. Bloomington, 71 id. 238; 2 Dillon on Mun. Corp. sec. 1006.
    Mr. B. W. Pope, and Mr. George W. Young, for the appellee;
    Whether a sidewalk is really defective, is a question of fact. Burt v. Boston, 122 Mass. 223.
    Whether a railing or a light at any part of the highway is necessary, is a question of fact for the jury. 4 Wait’s Actions and Defenses, 677; Shearman & Redfield on Negligence, secs. 390, 391, 414; Houfe v. Town of Fulton, 29 Wis. 296; 9 Am. Rep. 568; Leicester v. Town of Pittsford, 6 Vt. 245.
    Whether or not a sidewalk is properly constructed, is a question within the province of a jury. Sullivan v. Oshkosh, 55 Wis. 558; Morrill on City Negligence, 236.

      It is the duty of a municipal corporation to keep its streets, etc., in'a reasonably safe condition for public use. Dewire v. Bailey, 131 Mass. 169; Niven v. Rochester, 76 N. Y. 619.
    The city is charged with a duty to keep its streets in order, and, it may almost be said, is bound to act upon the assumption that they are unsafe. Morrill on City Negligence, 136.
    When two causes combine to produce an injury to a traveler upon a highway, both of which are in their nature proximate, the one being a culpable defect in a highway, and the other some occurrence for which neither party is responsible, the municipality is liable, provided the injury would not have been sustained but for such defect. Clark v. Lebanon, 63 Me. 393 ; Macauley v. New York, 67 N. Y. 602; Kennedy v. New York, 73 id. 365; Galveston v. Posnainsky, 62 Texas, 118; Crawfordsville v. Smith, 79 Ind. 308; Morrill on City Negligence, 106.
    Negligence may be the proximate cause of an injury of which it is not the sole or immediate cause. If the defendant’s negligence concurred with some other event, other than the plaintiff’s fault, to produce the plaintiff’s injury, so that it clearly appears that but for such negligence the injury would not have happened, and both circumstances are closely connected with the injury in the order of events, the defendant is responsible, even though his negligent act was not the nearest cause in order of time. Shearman & Bedfield on Negligence, secs. 10, 596, 27, 45; 4 Wait’s-Actions and Defenses, 719.
    Where a town neglected to keep a highway reasonably safe, the fact that there was negligence of a third party in contributing to the injury is of no consequence. Burrell Township v. Uncapher, 4 Pa. (L. ed.) 756.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The evidence given upon the trial tended to prove that the plaintiff, a boy of some fifteen years of age, while, in the observance of ordinary care for his own safety, passing along a much used public sidewalk of the. defendant, was, by reason. of the inadvertent or negligent shoving by one boy of another boy against him, jostled or pushed from the sidewalk, at a point where it was elevated some six feet above the ground, and was unprotected by railing or other guard, and thereby seriously injured in one of his limbs.

The objection urged against the ruling in refusing and modifying instructions, presents the question whether, conceding the negligence of the defendant in omitting to reasonably guard the sidewalk at the point where plaintiff was injured, by railing or otherwise, the concurring negligence of a third party over whom it had no control, in producing the injury, releases it from liability. The Supreme Court of Massachusetts have held in Rowell v. City of Lowell, 7 Gray, 103, Kidder v. Dunstable, id. 104, and Shephard et ux. v. Inhabitants of Chelsea, 4 Allen, 113, that it does. These cases, however, seem to rest, to some extent, upon 'the phraseology of the Massachusetts statute, which is less comprehensive, in this class of cases, than is the ruling in this court. (Chicago v. Keefe, Admr. 114 Ill. 222.) At all events, we are committed to a different line of ruling upon this question. In Joliet v. Verley, 35 Ill. 58, Bloomington v. Bay, 42 id. 503, and City of Lacon v. Page, 48 id. 500, we held, that if a person, while observing due care for his. personal safety, be injured by the combined result of an accident and the negligence of a city or village, and the injury would not have been sustained but for such negligence, yet, although the accident be the primary cause of 'the injury, if it was one which common prudence and sagacity could not have foreseen and provided against, the negligent city or village will be liable for the injury.

It is not perceived how, upon principle, the intervention of the negligent act of a third person, over whom neither the plaintiff nor the defendant has any control, can be different in its effect or consequence, in such case, from the intervention therein of an accident having a like effect. The former no more than the latter breaks the causal connection of the negligence of the city or village with the injury. The injured party can no more anticipate and guard against the one than the other, and the elements which constitute the negligence of the city or village must be precisely the same in each case; and we have accordingly held, that where a party is injured by the concurring negligence of two different parties, each and both are liable, and they may be sued jointly or separately. (Wabash, St. Louis and Pacific Ry. Co. v. Shacklet, Admx. 105 Ill. 364; Transit Co. v. Shacklett, 119 id. 232.) And this is abundantly sustained by decided cases elsewhere. Northern Pennsylvania Railroad Co. v. Mahoney, 57 Pa. St. 187; Cleveland, etc., Railroad Co. v. Terry, 8 Ohio, (N. S.) 570; Smith v. N. Y., S. and W. Railroad Co. 46 N. J. L. 7; Webster v. Hudson River Railroad Co. 30 N. Y. 260; Patterson on Railway Accident Law, secs. 39, 95, and cases cited in notes appended to each section. See, also, Shearman & Redfield on Negligence, (2d ed.) secs. 10, 27, 46, 401. And we have applied the same rule in a suit for negligence against a municipal corporation. Peoria v. Simpson, 110 Ill. 301.

The Massachusetts rule seems to be applied also in Maine, (Moulton v. Sanford, 51 Me. 127, Wellcome v. Leeds, id. 313,) but it seems to have been elsewhere repudiated when the question has been considered. See Hunt v. Pennell, 9 Vt. 411, and authorities cited supra.

The instructions, as given, fairly presented the law- of the case to the jury; and concurring, as we do, fully, with the views expressed in the opinion of the Appellate Court by Mr. Justice Green, (Village of Carterville v. Cook, 29 App. Ct. R. 495,) we deem it unnecessary to comment further upon the rulings below.

The judgment is affirmed.

Judgment affirmed.

Mr. Justice Baker,

having tried this case in the circuit court, took no part in its consideration here.