text:
    Robert E. Allen v. George W. Bowen et al.

      Filed at Mt. Vernon January 31, 1883.

      "Will—sufficiency of description. A description of property devised, as “my house and lot in the town of Patoka, Illinois,” is sufficient to pass the property. It is capable of exact identification and location, from being named as the testator’s house and lot in that town; and with proof that the testator owned a house and lot in such town, which lot is the north two-thirds of lot 12, in block 10, railroad addition to the town of Patoka, Illinois, and never owned any other house and lot in that town, the description is rendered certain, and such description will not be vitiated by an attempt in the will to give a further description, in whiph the lot is misdescribed as lot 19 instead of lot 12. The misdescription, in such case, may be disregarded, under the maxim “falsa demonstratio non nocet. ”
    Appeal from the Circuit Court of Marion county; the Hon. Amos Watts, Judge, presiding.
    Mr. Henry C. Goodnow, for the appellant:
    The first description in the will is sufficient to pass the title to the house and lot, upon the premises being identified by extrinsic evidence; and the addition of the false description does not vitiate the good one. Falsa demonstratio non nocet, applies. Broom’s Legal Maxims, (5th Am. ed. from 3d London ed.) top page 422; Sharp v. Thompson, 100 Ill. 450; Griscom v. Evans, 40 N. J. 402; Drew v. Drew, 8 N. H. 489.
    The proof showed that Ann Quinn never owned but one house and lot in Patoka, Illinois, which she had at the time of her death, and that it was lot 12, block 10, instead of lot 19, block 10, found by the court.
    Mr. J. B. Kagy, and Mr. H. C. Feltman, for the appellees:
    The introduction of the will, as admitted to probate, in evidence, shows the lot to be lot 19. This, we think, is a fatal variance. Wise, Admr. v. Twiss, Admr. 54 Ill. 304.

      There is no ambiguity on the face of the will in the description of the subject of bequest, taken as a whole. The terms are clear and distinct, and can not be contradicted by evidence cle hors the will. Chappell v. Avery, 6 Conn. 34; Ferrer v. Ayers, 5 Pick. 407; Avery v. Chappell, 6 Conn. 270; Comstock v. Hadlyne, 8 id. 254; Kurtz v. Hibner, 55 Ill. 514; 1 Jarman on Wills, (3d Am. ed.) top page 326; also, pages 352, 355, 525.
    Appellant insists there are two descriptions: First, that included in the first clause by the words “my house and lot,” etc.; and second, by the words “lot 19, ” etc. If this be so, a latent ambiguity arises on the words “my house and lot, ” and evidence is necessary to show what property is comprehended by the words employed. The testatrix, by the will itself, in the next clause defines it as lot 19. Her words can not be contradicted, expressio unius est exclusio alterius. See authorities above.'
    When clauses are repugnant, the later modifies the former. Brownfield v. Wilson, 78 Ill. 467.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a suit in ejectment, to recover the possession of the north two-third parts of lot 12, block 10, railroad addition to the town of Patoka, Illinois, wherein, upon trial without a jury, the court below rendered judgment in favor of the defendants, and the plaintiff appealed. The plaintiff claims title under the will of Ann Quinn, deceased, and the defendants by purchase from the heirs of Ann Quinn.

The clause in the will of Ann Quinn, as it appeared at the time the will was offered for probate, was as follows: “I give • and bequeath to my grand-son, Robert E. Allen, of Clinton, Indiana, my house and lot in the town of Patoka, Illinois, known and described as follows: the north two-third parts of lot No. 12, block No. 10, railroad addition to the town of Patoka. ”

On an appeal by defendant Nancy Hall from the allowance of this will to probate by the county court, to the circuit court of Marion county, the circuit court, in allowing the will to pBobate, found that the will, since its execution, had been altered by some one other than the testatrix, by a change of the description of the lot from lot 19 to lot 12, and ordered that the altered figure should be read as originally written, and that the will should be recorded as the same was originally written, the number used to.designate the lot being 19. There is no evidence by whom the alteration was made.

Beading this clause of the will, then, as it was originally written, and as admitted to probate and recorded, the description is: “the north two-third parts of lot No. 19, block No. 10, railroad addition to the town of Patoka, ” whereas the lot sued for is lot 12, block 10.

Proof was made that Ann Quinn owned a house and lot in the town of Patoka, which lot was the north two-third parts of lot 12, block 10, railroad addition to the town of Patoka, Illinois, and that that was the only house and lot she ever-owned in the town. There is no doubt what the subject of the devise was. It was, “my house and lot in the town of Patoka, Illinois. ” This description, alone, was sufficient to carry the title to the property. It was capable of exact identification and location, from being named as the testatrix’ house and lot in the town of Patoka, Illinois, and by the proof made was rendered certain as being lot 12. Undertaking, in this clause of the will, to describe. the subject of devise further, by the number of the lot, was but an attempt tp give an additional particular of description of the property. In this respect of the lot’s number there was a misdescription, it being described as lot 19 instead of lot 12; but this will not vitiate, and will be disregarded, when otherwise it appears, unmistakably, what was the subject matter attempted to be described. If the instrument defines, with convenient certainty, what is intended to pass by it, a subsequent erroneous addition will not vitiate it. (3 Washburn on Real Prop. 344.) The rule in this respect is familiar, being expressed by the maxim, “falsa demonstratio non nocet.”

The judgment is reversed and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    The Wabash, St. Louis and Pacific Railway Company v. Louisa J. Shacklet, Adm’x.

      Filed at Mt. Vernon January 31, 1883.

      1. Pleading and evidence—immaterial averment. In an action by an administrator to recover damages for causing the death of the intestate by-negligence, the averment that the deceased, at the time of the accident, was exercising due care and diligence, whether necessary or not, when traversed by- the general issue can not be treated as an immaterial allegation, and must be sustained by the evidence.
    2. Negligence—contributory negligence—instructions. Where the want of negligence on the part of one killed by a collision of two railroad trains is averred and put in issue, it is error for the court, in instructions, to ignore this issue, where none others are given on the other side to cure such omission.
    3. If, in such case, there was no evidence whatever of the negligence of the deceased, the judgment in favor of the plaintiff ought not to be reversed for such faulty instructions; but where the proof shows that a shipper of stock took his position upon the front of an engine, and while in such situation, on a colliding of trains, was struck and .injured, it can not be said the evidence fails to show any negligence on his part.
    4. Although a shipper of stock on a railway train may be rightfully upon any part of such train, as regards such company which is carrying his stock to a stock yard, still such right will not relieve him from the duty of using due care to protect himself from injury from another company’s train colliding with the same, where such other company is sought to be held liable for his death occasioned by the collision.
    5. Where a shipper of stock, in going into stock yards, in company with five or six other persons, rides on the front of the engine, all of whom except him, seeing a backing train on the same track, jump off, and thus escape injury, but he does not, and is killed on a collision of the trains, the question' of negligence arising on his failure to jump off and save himself is a question of fact, which should be submitted to the .jury, under proper instructions, in an action to recover for his death, and an instruction ignoring this, not cured by others, is erroneous.
    6. Same—liability when injury is caused by the negligence of two railroad companies. "Where a passenger on a railway train is injured by the mutual negligence of the servants of the company on whose train he is rightfully traveling, and of the servants of another company with whom he has no contract, there being no fault or negligence on his part, he or his personal representative may maintain an action against either company in default, and will not be restricted to an action against the carrier company on whose train he was traveling.
    7. Action—pabties—election to sue all or any of several wrong-doers. Where one has received an actionable injijry at the hands of two or more wrong-doers, all, however numerous, are severally liable to him for the full amount of damages occasioned by such injury, and the plaintiff in such case has his election to sue all jointly, or to sue each or any one of the wrongdoers.
    8. Same—by foreign administrator. A foreign administrator may maintain an action in this State against a railway company to recover damages for causing the death of the intestate through negligence.
    9. Same—nature of action for injury. Where a passenger on a railway train is injured by a collision of his train with another, through the mutual negligence of both companies, he exercising due care, he can not maintain an action ex contractu against the company owning the rival train; but this furnishes no reason why he may not maintain an action ex delicto against it.
    10. Passengeb—entitled to protection against injury from all persons. The law extends to a passenger on a railway train or other public conveyance the same protection against fraud, force and negligence, that it does to any one else. By assuming the relation of a passenger he neither expressly nor impliedly waives that indemnity against injury which the law gives him.
    11. Ikstbuctions—when one does not ewe error in another. Where the court gives two instructions, the one correct, but the very reverse of the other, which is erroneous, the correct instruction will not cure the error in the other, as the jury have no means of determining which is correct.
    12. Pebsonal eights—defined and distinguished. The general right of a citizen to security of life and limb, and indemnity against personal injuries occasioned by the negligence, fraud or violence of others, is a right in rem, as distinguished from a right in personam, growing out of contract.
    Appeal from the Appellate Court for the Fourth District; —heard in that court on appeal from the City Court of East St. Louis; the Hon. Charles T. Ware, Judge, presiding.

      Mr. G. B. Burnett, and Mr. Frank W. Burnett, for the appellant:
    The judgment should be reversed because plaintiff’s instructions ignore the question of ordinary care by the deceased. Chicago and Northwestern R. R. Co. v. Dimmick, 96 Ill. 42; Chicago, Burlington and Quincy R. R. Co. v. Harwood, 80 id. 88; Chicago, Burlington and Quincy R. R. Co. v. Payne, 49 id. 499; Chicago, Burlington and Quincy R. R. Co. v. Lee, 60 id. 502; Chicago and Northwestern R. R. Co. v. Simonson, 54 id. 504; Illinois Central R. R. Co. v. Moffit, 67 id. 431; Illinois Central R. R. Co. v. Herrington, 83 id. 510; Chicago and Alton R. R. Co. v. Pennell, 94 id. 42; Wabash Ry. Co. v. Hunt, 91 id. 406; Chicago Packing Co. v. Tipton, 87 id. 547; Illinois Linen Co. v. Hough, 91 id. 63; Stratton v. Central Horse Ry. Co. 95 id. 25.
    As the deceased was a passenger of the transit company, whose negligence contributed to the injury, the plaintiff can not recover from appellant unless the negligence of the transit company was slight in comparison With that of appellant. City of Joliet v. Seward, 86 Ill. 406; Toledo, Wabash and Western Ry. Co. v. Miller, 76 id. 278; Toledo, Wabash and Western Ry. Co. v. Grable, 88 id. 443; Lockhmt v. Lichtenthaler, 46 Pa. St. 151; Lake Shore and Michigan Southern R. R. Co. v. Miller, 25 Mich. 274; Smith v. Smith, 2 Pick. 621; Houfe v. Fulton, 29 Wis. 296; Prideaux v. Mineral Point, 43 id. 513; Forkstown v. King, 84 Pa. St. 230; Payne v. Chicago Ry. Co. 39 Iowa, 525; C. C. & C. R. R. Co. v. Terry, 8 Ohio St. 570; Puterbaugh v. Reason, 9 id. 484; Brown v. New York Central R. R. Co. 31 Barb. 335; Thorogood v. Bryan, 65 Eng. C. L. 114; Catlin v. Hill, id. 123; Child v. Hearn, L. R. 9 Exch. 176; Wharton on Negligence, sec. 395; Cooley on Torts, 684, 140.
    It was error to instruct the jury that if both companies were negligent, the plaintiff might recover from either. Yeazel
      v. Alexander, 58 Ill. 254; Chicago and Northwestern Ry. Co. v. Scates, 90 id. 586; Cooley on Torts, 133, 140; Wharton on Negligence, sec. 395.
    Appellee, as foreign administratrix, is not entitled, under the statute, to maintain this action. Hurd’s Stat. 1880, chap. 3, sec. 42; People v. Peck, 3 Scam. 118; Judy v. Allington, 11 Ill. 211; City of Chicago v. Mayor, 18 id. 349; Illinois Central R. R. Co. v. Cragin, 71 id. 177.
    Mr. Waldo P. Johnson, and Mr. M. Millard, for the appellee:
    There being no doubt as to the defendant’s negligence, the giving or refusing of instructions working no injury will not reverse. Andes Ins. Co. v. Fish, 71 Ill. 620; Schwartz v. Schwartz, 26 id. 81; Ryan et al. v. Donnelly, 71 id. 101.
    Errors in instructions, where the verdict does justice, are no ground for a reversal. Potter v. Potter, 41 Ill. 81; Jarrard v. Harper, 42 id. 457; Murray v. Haverty, 70 id. 318; White v. Stanbro, 73 id. 575; Hall v. Sroufe, 52 id. 421; Strohm v. Hayes, 70 id. 41; Hubner v. Feige, 90 id. 208.
    As to whether the negligence of a third party can be imputed to the plaintiff, and defeat a recovery against one whose failure of duty was the proximate cause of the injury, is not beyond dispute. The better doctrine seems to be to limit this rule to cases where there is such a personal relation as fairly to make the plaintiff responsible for the other’s conduct. Dyer v. Erie Ry. Co. 71 N. Y. 288; Chapman v. New Haven R. R. Co. 19 id. 341; Bennett v. New Jersey R. R. Co. 36 N. J. 225; Danville Turnpike Co. v. Stewart, 2 Metc. (Ky.) 119; Louisville R. R. Co. v. Case’s Admr. 9 Bush, 728; Shearman & Redfield on Negligence, 48; Wharton on Negligence, sec. 395.
    A foreign administrator may maintain the action. Illinois Central R. R. Co. v. Cragin, 71 Ill. 177.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal from the Appellate Court for the Fourth District, affirming a judgment of the City Court of East St. Louis, rendered at its August term, 1881, against the Wabash, St. Louis and Pacific Bailway Company, the appellant, for the sum of $3500, in an action brought by Eliza J. Shacklet, the appellee, as administratrix of Elijah E. Shack-let, her late husband, to recover damages for injuries received by him in a railway collision, resulting in his death, charged to have been caused by the negligence of the appellant.

The injury complained of occurred in East St. Louis, on a short line of railroad belonging to the St. Louis National Stock Yards, and was caused by a collision of two trains of ears, belonging, respectively, to the appellant and the Union Bailway and Transit Company. The road on which the collision occurred connected the stock yards with the various lines of railway running through or terminating at East St. Louis, and was open alike to the free and common use of all railway companies for the purpose of shipping live stock to or from the stock yards. This connecting line of road belonging to the stock yards company consists of two main tracks, connected at or near the stock yards by necessary switches and turn-outs, so that with proper care and precaution collisions between incoming and outgoing trains might readily be avoided. The track on which the collision occurred is called the “wall track, ” and the evidence tends to show that trains going in with stock were entitled to the right of way on this track. At the time of the,accident the transit company was pulling a train into, and the appellant was pushing one out from, the stock yards on this wall track, both trains being loaded with live stock, but owing to a sharp curve in the track, and some obstructions on the line of the road, those having the trains in charge did not discover their close proximity till it was too late to avoid the collision. Shaeklet, at. the time, was riding on the engine of the transit company’s train, and a number of the cars belonging to it were loaded with his stock.

Kay, a witness on behalf of appellee, in giving an account of the affair, says: “There is a curve in the track going around the sheep house, near the stock yards. Shaeklet was sitting right by me on the engine. I jumped off just as the conductor said ‘look out.’ There were six or seven persons riding on the engine. I was standing on the foot-board, and we all jumped off except Shaeklet, when we saw the Wabash train backing towards us. The tender of the bridge engine slopes downward, and the men were sitting on this slope on the front end of the tender. I had just time to jump off before the collision. The Wabash train was about fifteen yards from us, backing towards us, when I saw it. The transit train was going about five miles an hour, and the Wabash train pretty lively. The Wabash had about eighteen cars, and ivas pushing them* towards us. Could not see the Wabash train sooner on account of the curve, which is very short, and the sheep house also obstructed the view. The Wabash train was moving about twelve miles an hour when the collision occurred. When the trains came together the car of the Wabash slid upon the sloping end of the transit engine, and caught Shaeklet. He lived about twenty minutes. I saw none of the Wabash employés on the train. I saw a stock shipper standing on top of the Wabash train as it came around the curve. He was standing near the end. The transit train was going round to the chutes to unload stock, and the Wabash train was coming from the chutes at the time. ”

On the trial of the cause, the court, against the objections of the appellant, gave to the jury, among others, the following instructions: f

“3. If the jury believe, from the evidence, that the train of defendant was negligently and carelessly backed on the stock yards track, and that said train collided with an engine and train of the transit company, and Shacklet was rightfully riding on the last mentioned train, on the 'engine, and his death was caused by said collision, the jury will find for plaintiff, even if they further believe, from the evidence, that there was also negligence on the part of those in charge of the transit train.

“4. If the jury.believe, from the evidence, that the train of defendant was negligently and carelessly backed on the stock yards track, and that said train collided with an engine of the transit company on the same track, and caused the death of Shacklet, who was rightfully riding on the transit engine, then the jury will find for the plaintiff.”

The giving of these instructions is assigned for error. We are unable to perceive upon what theory they can be sustained, unless the fact of appellee’s intestate being carried on the transit company’s train in the manner we have seen, as matter of law relieved him from all obligation to exercise ordinary care and diligence to avoid the injury complained of, and we are aware of no authority which sanctions such a position. The declaration in this case expressly alleges that “the said Elijah E. Shacklet -was then and there riding on one of the engines and trains of the said Union Railway and Transit Company, along and on said track, with due care and diligence,” etc. The cases are not in accord as to whether the plaintiff was bound to make this averment in order to entitle him to recover. According to many respectable authorities the plaintiff’s own negligence is matter of defence, and properly comes from the other side, and hence the plaintiff is not bound to negative it in his declaration; and perhaps this is the better rule, and is more in consonance with the philosophy of pleading and the general analogies of the law. Tet it can not be denied that other respectable authorities maintain the contrary view, and precedents of declarations in cases of this kind are undoubtedly to be found which contain the averment that the plaintiff, at the time of the alleged injury, was exercising due care. But whatever may be the true rule in this respect, it must be conceded that when the declaration contains such an averment, and it is traversed by the defendant’s plea, as was done in this case, the issue thus formed can not be treated as an immaterial one. By the defendant’s plea of not guilty, this averment in the declaration was put directly in issue, and upon the evidence before the jury we think it was error in the trial court, in giving the law of the case to the jury, to ignore this issue altogether, as it certainly did by the instructions in question.

If the court had, in some other instruction given to the jury, stated, in clear and unequivocal terms, there could be no recovery in the case unless it appeared, from the evidence, that the deceased himself, at the time of the alleged injury, was exercising due care, it might then well be contended the omission in the two instructions complained of was cured, for in that ease the instructions, when considered as a whole, would have properly laid down the law. But such is not the case here. Indeed, it is not claimed there is any other instruction that relieves the two given of the objectionable feature in question. If there was no evidence whatever tending to show a want of care on the part of the plaintiff, it might then be said, notwithstanding the instructions complained of, the judgment should still be for the plaintiff, and consequently the case ought not to be reversed on the ground stated; but in the light of the facts before us we are unable to say this. If we assume the deceased, without any inquiry as to the manner in which the stock yards road was used, took a position on the front of the engine of the transit company’s train, (the most dangerous one, as it seems to us, he could have selected if he had any choice in the matter,) for the purpose of being carried out to the stock yards, his conduct in the premises certainly can not be said to be so absolutely free from all blame as to take it from the consideration of the jury altogether, as was, in effect, done by these instructions. If, on the other hand, he was informed, or otherwise had knowledge of the manner in which the road was used by the various companies doing business on it, he was bound to know the transit train was in more or less danger of colliding with some outcoming train, in which case his position on the front of the engine was most perilous indeed, for the evidence shows that it was not an infrequent thing for trains to come in collision with each other. One of the witnesses, speaking of the manner in which these tracks were used, says: “There are nearly always trains there. They often have regular bucking matches there, to see who can hold the track. * * * Trains. do not always keep out of each other’s way. They generally move blow, and the one who has the heaviest engine will push the other one out of the way. ”

It may be supposed the objection to these instructions in the respect stated is cured by the limitation contained in them which tells the jury if they find, from the evidence, “Shacklet was rightfully riding on the transit engine, ” etc. But we do not think so. The instruction in this respect was subject to misconstruction. The jury might have supposed, that as a shipper of stock he had the liberties of the whole train, and that he had a right, therefore, to take any position on it, however dangerous. His right to ride upon the train did not relieve him from the duty of using such care as was reasonably necessary to protect himself from injury. He was under no legal obligation to adopt that mode of conveyance to the stock yards, and he should not have done so if it was really hazardous, although, as between him and the carrier company, he had a right to go there in this manner,— at any rate, this was clearly matter for the consideration of the jury, and the instructions practically took it from them.

Again, it appears, as we have already seen, there were some five or six other persons riding on the engine of the same train with the deceased, all of whom except him, on seeing the backing train of the appellant, jumped off, and thus escaped injury. Now, whether the failure of the deceased to escape from the train in like manner was an act of negligence on his part, was clearly a question for the jury, and should not, "in effect, have been withdrawn from its consideration, as was done by the instructions in question. Indeed, when all these facts and circumstances are considered in connection, we have no hesitancy in holding they were sufficient to require the question of the plaintiff’s own care and diligence to be submitted to the jury, under proper instructions, and this not having been done, the Appellate Court should have reversed the judgment of the trial court for that reason.

It is also contended by appellant’s counsel, that where, in an action like this, a passenger on a railway, or his legal representatives, seek to recover damages occasioned by the colliding of two trains belonging to different companies, and it appears the collision was caused by the contributory negligence of the servants of both companies in the management of their respective trains, however free such passenger may have been from any contributory negligence himself, he or his legal representatives can only maintain an action against the company upon whose train he was a passenger. Assuming this to be the law, had there been no instruction given to the jury laying down a contrary rule, we might content ourselves by saying the affirmance of the judgment of the trial court by the Appellate Court conclusively negatives the charge of contributory negligence on the part of the transit company. But such is not the case. By appellee’s first and second instructions the court in effect told the jury, that in such cases where the collision is caused by the mutual negligence of the servants of both companies, and the passenger himself is without fault, lie or his legal representatives may nevertheless maintain an action against either company. It is true the court, by appellant’s third instruction, as we understand it, lays down the very reverse of this proposition as the law governing the case; but if the rule,' as stated in appellee’s first and second instructions, is not correct, it is quite clear the error is not cured by the giving of appellant’s third instruction, for, under the circumstances, the jury had no means of determining which set of instructions was right. So by the appellant’s exception to appellee’s first and second instructions the question is directly presented, whether a passenger on one train can maintain an action against the owner of another train on account of injuries received in a collision between the two, caused by the mutual negligence of the servants in charge of both trains, where it affirmatively appears such passenger acted with due care, and in no way contributed to the result. The courts of England and of Pennsylvania, and possibly others to which our attention has not been called, have answered this question in the negative, while the courts of New York, New Jersey 'and Kentucky answer it the other way. Among the text-writers, Shearman & Bedfield, Wharton, and Thompson, all place themselves in line with the latter courts in holding the action will lie. Dyer v. Erie Ry. Co. 71 N. Y. 288; Chapman v. New Haven R. R. Co, 19 id. 341; Bennett v. New Jersey R. R. Co. 36 N. J. 225; Danville Turnpike Co. v. Stewart, 2 Metc. (Ky.) 119; Louisville R. R. Co. v. Case’s Admr. 9 Bush, 728; Shearman & Redfield on Negligence, 48; Wharton on Negligence, sec. 395; Thompson on Carriers of Passengers, 284.

■ The leading English case denying the right of action in )/such cases, is Thorogood v. Bryan, 8 0. B. íül. .Jn this case the injury complained of was caused by the collision of two rival omnibuses, occasioned by the mutual negligence of the drivers. Of course the same principles apply to collisions of this kind that are applicable to railway collisions, under like circumstances. It was said by Maulé, J., in that ease: “Although I, at one time, entertained a contrary impression, I incline to think that, for this purpose, the deceased must be considered as identified with the driver of the omnibus in which he voluntarily became a passenger, and that the negligence of the driver was the negligence of the deceased. If the deceased himself had been driving, the case would have been free from doubt. So, there could have been no doubt had the driver been employed to drive him, and no one else. On the part of the plaintiff it is suggested, that a passenger in a public conveyance has no control over the driver. But I think that can not, with propriety, be said. He selects the conveyance. He enters into a contract with the owner, whom, by its servant, the driver, he employs to drive him. If he is, dissatisfied with the mode of conveyance, he is not obliged to avail himself of it. According to the terms of his contract he unquestionably has a remedy for any negligence on the part of the person with whom he contracts for the journey. ” We have made this very copious extract in order that the reasons on which the English rule was originally founded may distinctly appear, with the view of showing, from subsequent English cases, and the Pennsylvania cases which follow them, that while the rule itself has, on the principle of stare decisis. since been adhered to, with occasional manifest indications of disfavor on the part of some of the judges, yet the reasons upon which it was originally founded, as above set forth, have been almost entirely repudiated.-

In Lockhart v. Lichtenthaler, 46 Pa. St. 151, the Supreme Court of Pennsylvania, in adhering to the English rule as announced in Thorogood v. Bryan, supra, said: “I do not think, however, the rationale of the principle is satisfactorily expounded in Thorogood v. Bryan, viz., the identity of the passenger with his own vehicle. I would say the reason for it is, that it better accords with the policy of the law to hold the carrier alone responsible in such circumstances, as an incentive to care and diligence.”

In Armstrong v. Lancashire R. R. Co. 10 Exch. 47, a late English case, Pollock, B., in referring to Thorogood v. Bryan, su/pra, said: “The only difficulty in it arises from the use of the word ‘identified,’ in the judgment. If it is to be taken that by the word ‘identified,’ is meant that the plaintiff, by some conduct of his own, as, by selecting the omnibus in which he was traveling, has acted so as to make the driver his agent, this would sound like a strange proposition, which could not be entirely sustained. But what I understand it ' to mean is, that the plaintiff, for the purpose of the action, must be taken to be in the same position of the omnibus, or his driver. This is illustrated by the case of Waite v. Northwestern Raihvay, where it was held that a child, wdth regard to contributory negligence, was identified with its grand-mother who accompanied it, although it was impossible to say there was any selection of the companion, or any act of volition on the part of the child. ”

This hasty and limited reference to some of the cases recognizing the English rule, clearly shows that the views, even of the English judges themselves who have undertaken to expound it, are not at all in accord on the subject. Maule, J., in the Thorogood case, for the purpose of the action identified the passenger with the driver of the coach in which he was riding, on the ground that by voluntarily contracting with the owners for the vehicle, to be driven by a particular driver, the latter thereby became the agent of the passenger in such a sense as to defeat a recovery against the owners of the rival omnibus, where it appeared the driver was guilty of contributory negligence. Pollock, B., in the subsequent case of Armstrong v. Lancashire R. R. Co. supra, as we have just seen, wholly repudiates the agency theory, and characterizes it as “a strange proposition.” He, however, adheres to the idea of the identity of the passenger and driver for the nurnoses of the action, for to yield this would he to abandon the rule altogether. In speaking of the expression “identified, ” as used in the Thorogood case, he says: “What I understand it to mean is, that the plaintiff, for the purpose of the action be taken to be in the same position as the owner of the omnibus, or driver, ”—that is, for the purposes of the action the negligence of the driver or owner must be attributed to the passenger or his legal representatives who seek redress. This is hut a mere statement of the rule, and does not throw a particle of light on the real ground of contention between those who oppose and those who favor it. The important inquiry is, what, if any, good reasons have been or can be urged in favor of the rule ? It is manifest the agency theory can not be maintained, for to do so, if logically adhered to, would be to deny the passenger all right of action whatever against the owners of either conveyance, for if the driver, in the case of an omnibus or other vehicle, or the servants of the company, in the case of a railway train, are to he regarded as the mere agents of the passenger, their negligence of course would, in law, be simply the negligence of the passenger, and to permit him to recover from the owner of either conveyance, would be to allow a plaintiff to recover from another on account of his own negligence, which, of course, all must concede could not be done. For this and many other reasons that might readily he suggested, the theory that the servants in charge .of a public conveyance are in any sense the agents of a mere passenger, may he regarded as exploded.

The agency theory having been repudiated by Pollock, B., as we have just seen, that distinguished judge sought to fortify the rule in question by its supposed analogy to the principle which, in some cases, denies a right of action to a person incapable of taking care of himself, as, an infant, idiot, or the like, for an injury caused in part by the contributory negligence of one having such incapable person in charge. Whether the rule referred to exists to the extent claimed, it is not necessary for us to stop to inquire, for, conceding it does, we(fail to) perceive but little analogy between the two classes of cases. As an infant of tender years is incapable of perceiving or of avoiding danger, and is unconscious of the probable consequences of its own acts, the law could not consistently, and does not, attribute negligence to it. In contemplation of law', and in fact, it is incapable of acting for itself, and is wholly irresponsible. Inasmuch, therefore, as it is in an entirely helpless condition, the law has wisely entrusted its care and custody to others, whose duty it is to exercise for it that prudence and discretion which it is incapable of exercising for itself, for the purpose of protecting it, not only against the wrongs of others, but also from the consequences of its own improvident acts. This provision of the law is humane in its character, and highly essential to the well-being of the infant itself. Among the duties which the law thus imposes upon those having the custody or charge of an infant, is that of preventing it from going into places of danger, and thereby exposing itself to irreparable injury, which, if done by an adult, would be gross negligence. Since those having the custody or charge of an infant are bound to act and judge for it in all matters of this kind, as it is wholly incapable of judging or acting for itself, it is eléar the infant is directly represented by those thus acting for it, and any negligence or want of care on their part in the discharge of this duty should, in justice, (as it is, so far as third parties are concerned,) be treated as the negligence of the infant itself,—and such is the settled doctrine of the courts. But with a sane person, who has arrived at the years of discretion, the case is quite different. He must, at all times and under all circumstances, judge and act for himself in the varied relations of social and business life, and if he, without fault" on his part, has been injured through the mutual negligence of two or more persons, he has a right of action against either of the wrong-doers, unless it shall appear he has, either expressly or by implication, authorized the injury complained of,—and, so far as his right of recovery is concerned, it makes no difference whether the injury occurred in an omnibus, or in the passenger coach of a railway, or elsewhere. Nor is the right of recovery in such case at all affected by the fact that the parties whose negligence caused the injury were the owners of rival omnibuses or railway trains, in or upon one of which the plaintiff was a passenger. The law extends to a passenger in a public conveyance the same protection against fraud, force and negligence, that it does to any one else, and by assuming the relation of a passenger he neither expressly nor impliedly waives that indemnity against injury which the law thus throws around him.

In some of the cases favoring the English rule, one of the reasons assigned why the action should be confined to the carrier company is, that the latter company, by its express or implied contract with the passenger, is under special and additional obligations to him to use due care, and carry him safely, whereas the other company has entered into no such engagement with him. While this affords a conclusive reason why an action ex contractu, will not lie against the other company, it does not, in our judgment, furnish the slightest reason why an action ex delicto may not well be maintained against such other company for a tort committed by it, independently of a contract, which has resulted in an injury to the plaintiff. One of the primary rights of the citizen, sanctioned by the positive law of the State, is security to life and limb, and indemnity against personal injuries occasioned by the negligence, fraud or violence of others. This is a right which avails against all persons whomsoever, and is distinguished from a right which avails against a particular individual or a determinate class of persons. The former is called a right in rem, the latter a right in personam. The former class of rights exists independently of contract; the latter frequently arises out of contract. These two kinds of rights may exist in the same person at the same time, and though having no connection with each other, may look to the accomplishment of the same object; yet the possession of one does not affect duties and obligations relating to the other. For instance, no one has a right to assault me. This indemnity which the law affords me, avails against mankind generally, and is therefore a right in rem. This right in me imposes a corresponding duty upon all persons whomsoever to refrain from assaulting me; but I may, if I think proper, add to this general security which the law affords me, by entering into a contract with some determinate person to not only refrain from assaulting me himself, but also to indemnify me against all damages resulting from the assaults of others. My right, under this contract, is a right in personam, and consequently avails only against the person with whom I made the contract, and although it has for its object the accomplishment of the same end my right in rem has, namely, ■indemnity against assaults upon my person, nevertheless both rights exist in me at the same time, wholly independent of each other. Now if, under the circumstances supposed, I . should be assaulted by a stranger, resulting in damages, there is no question but that I might maintain an action ex contractu, against the party who specially contracted w,ith me to indemnify me against such assaults. This action would be based upon the breach of my right in personam. But by the assault my right in rem was also violated, and there is no question but that an action of trespass would lie against my assailant for its violation, and a plea in such action setting up the fact that I had a contract with a third party indemnifying me against all such assaults, would hardly stand the test of a demurrer. So in the present ease, appellee’s intestate had a right in rem, or a general right, which entitled him, if free from fault himself, to be protected and indemnified against injuries resulting from the negligence of all persons whomsoever, including the appellant, and the fact that the transit company may have specially or impliedly contracted with him for such indemnity on his becoming a passenger on its train, is no answer to an action.brought against the appellant for its own negligence.

The Supreme Court of Pennsylvania, as we have already seen, repudiating both the agency and identity theories, maintains the English rule, on the ground “it better accords with the policy of the law to hold the carrier alone responsible in such circumstances, as an incentive to care and diligence. ” We confess we are unable to perceive the force of this argument, for, conceding that to hold the carrier of the plaintiff or his intestate alone responsible would have the tendency claimed, yet to relieve the other guilty party from all responsibility whatever, would have just the contrary effect, so that whatever was gained in one direction would be lost in the opposite direction.

Considering the question, then, in the light of public policy, we are of opinion the public interests will be best subserved by adhering strictly to the long and well established principle that where one has received an actionable injury at the hands of two or more wrong-doers, all, however, numerous, are severally liable to him for the full amount of damages occasioned by such injury, and the plaintiff in such case has his election to sue all jointly, or he may bring his separate action against each or any one of the wrong-doers. To sanction a departure from this fundamental principle in the law of torts, would create an anomaly in the law not demanded by justice, convenience or public policy.

It is further urged in some of the cases, that in collisions of this kind there is no concert of action between the servants of the two companies,—that each set of servants is acting independently of the other, and in furtherance of opposing purposes, and hence there can be no joint liability between the two companies. However this may be, the present action is not brought against the companies jointly, hence the question mooted is not before us, and we deem it proper, therefore, to decline any discussion of it. Whatever may be the proper solution of this question, it c'an not at all affect the right of action in the present case.

It is finally objected, that under our statute the plaintiff, who is a foreign administrator, is not authorized to bring this action,—that by a fair construction of the different provisions of the statute relating to the subject, resident administrators alone are authorized to sue. While this view of the matter is plausible, and not without force, yet we are unable to give our adhesion to it. Upon a careful consideration of the question, we are of opinion the view taken of it by the Appellate Court is the correct one, and that the action is therefore well brought by the administrator.

For the error indicated, the judgment of the Appellate Court is reversed, and the cause remanded to that court, with directions to reverse the judgment of the City Court of East St. Louis, and remand the cause for further proceedings in conformity with the views here expressed.

Judgment reversed.


author: Mr. Justice Craig

text:
    The East St. Louis Board of Trade v. The People ex rel. Robert S. McCormick.

      Filed at Mt. Vernon January 31, 1883.

    1. Inspectors of grain— boards of trade of Fast St. Louis and Chicago—their powers. By the act of 1867, incorporating the East St. Louis Board of Trade, there were conferred upon that board all the powers and privileges, and it was subjected to all the restrictions, of the Chicago Board of Trade as then existing under its charter of 1859. Section 10, of the charter of the board of trade of Chicago, merely authorizes an inspection of grain by inspectors appointed by the board of trade, among its members, or as to any other person who may agree thereto; and such inspectors so appointed have no authority to act in any other case, or under other or different circumstances.
    2. Same—public warehouses—act of 1871 construed as not affecting boards of trade. The act of 1871, for the regulation of public warehouses, was not intended as an amendment of the charters of boards of trade. That act was intended as a complete system of itself, in no manner connected with or depending upon any other law on the subject. Under it no provision is made for the appointment of inspectors of grain for public warehouses in class “B.”
    3. Siam—effect of act not providing for inspectors. Under the act of 1871, in relation to public warehouses, it making no provision for the appointment of inspectors of grain in class “B,” the owners or proprietors of that class of warehouses could conduct their business without inspection, as before the passage of the law. This .seeming defect in the act can not be construed to invest boards of trade with the power of appointing such inspectors.

      í. Section 19, of the act of 1871, prohibits warehousemen of class “B” from receiving and mixing the grain of different owners until the same shall have been inspected, in all places where there are legally appointed inspectors of grain. Such inspectors are not such as are appointed by a board of trade, but such as might be appointed under power subsequently conferred by law. So inspectors appointed by the board of trade of East St. Louis are not legally appointed under this section.
    Appeal from the Circuit Court of St, Clair county; the Hon. George W. Wall, Judge, presiding.
    Mr. M. Millard, for the appellant.
    Messrs. Broadhead & Huessler, Mr. L. H. Hite, Mr. John B. Bowman, and Messrs. Wilderman & Hamill, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a proceeding by quo warranto, instituted in the St. Clair circuit court, at the September term, 1882. The first count of the information charges, in substance, that appellant, a corporation, etc., on the 20th day of June, 1882, at East St. Louis, in St. Clair county, did unlawfully usurp, and hitherto has continued to and does now unlawfully usurp, the following liberties, privileges and franchises not conferred upon it by law, viz: the power and exclusive right to appoint and maintain legal inspectors to inspect and establish grades of all grain to be received into warehouses and elevators classed “B” under the law, in the city of East St. Louis, and to charge and collect from the owners, not being members of said corporation, nor requiring or assenting to the employment of such inspectors, fees for such inspection. To this information appellant pleaded in justification, in substance, that it is a ’corporation organized and existing under an act of the General Assembly, .entitled “An act to incorporate the East St. Louis Board of Trade, ” approved February 21, 1867, which act conferred upon it all the powers and privileges, and subjected it to all the restrictions, of the Chicago Board of Trade, as then created by ah act entitled “An act to incorporate the Chicago Board of Trade, ” approved February 18, 1859, which appellant claims confers upon it the powers and privileges mentioned in the first count of the information. To this plea the People interposed a demurrer, which was sustained by the court, and appellant declining to plead further, a judgment of ouster was entered. From this judgment appellant prosecutes this appeal.

The tenth section of the act to incorporate the Chicago Board of Trade, which is the section relied upon, declares: “Said corporation shall have the power to appoint■ one or more persons, as they may see fit, to examine, weigh, measure, guage or inspect flour, grain, provisions, liquors, lumber, or any other article of produce or traffic commonly dealt in by the members of said corporation; and the certificate of such person or inspector as to the quality or quantity of any such article, or their brand or mark upon it, or upon any package containing such article, shall be evidence between buyer and seller of the quantity, grade or quality of the same, and shall be binding upon the members of said corporation, or others interested, and requiring or assenting to the employment of such weighers, measurers, gaugers or inspectors. Nothing herein contained, however, shall compel the employment by any one of any such appointee. ”

Section 19 of the public act to regulate public warehouses, etc., in force July 1, 1871, (Rev. Stat. 1874, p. 826,) provides: “In all places where there are legally appointed inspectors of grain, no proprietor or manager of a public warehouse of class <B’ shall be permitted to receive any grain, and mix the same with the grain of other owners in the storage thereof, until the same shall have been inspected and graded by such inspector. ”

Appellant relies upon the two sections above for the exercise of the powers alleged in the plea.

The argument, as we understand it, is, that section 10 of the board of trade charter confers the power to inspect, and section 19 of the Warehouse law supplements that by making its exercise an operative police regulation, regardless of the assent of any one. So far as section 10 of the charter of the board of trade of Chicago is concerned, it is apparent that it did not authorize the exercise of the power set up in the plea, as it is therein expressly declared that the inspection named in the section shall be binding on the members of the corporation, and others interested, and requiring or assenting to the employment of such inspectors,—“nothing herein contained, however, shall compel the employment by any one of any such appointee. ” This provision merely authorized an inspection by inspectors appointed by the board of trade, among its members, or by any other person who might agree to an inspection by such an officer, but the inspector had no authority whatever to act in any other case or under other or different circumstances.

We now come to the act for the regulation of public warehouses, which, in connection with the charter, it is contended confers the power. The act was passed in 1871, in pursuance of article 13 of the constitution, which had become the organic law of the State in 1870. The original act was amended on the 28th day of May, 1879. (Laws of 1879, p. 226.) If the original act was intended as an amendment to the charter of the board of trade of East St. Louis, or as supplemental to any provision of that charter, the legislature exhibited great skill in concealing the intention, as no section of the act mentions or in the least alludes to the charter of the board of trade, and we do not believe that the charter of the board of trade was in the mind of the legislature when the law was passed,- or that it was enacted with reference to any provision in that charter. The act, as passed, seems to have been intended as a complete system of itself, in no manner connected with or depending upon any other law on the subject. The first section of the act provides that public warehouses, as defined in article 13 of the constitution, shall be divided into three classes,—“A,” “B,” and “C. ” The second section declares that class “A” shall embrace all warehouses where grain is stored in bulk, -and in which the grain of different owners is mixed together, such warehouses being located in cities having not less than 100,000 inhabitants. Public warehouses known as class “B” shall embrace all other warehouses in which grain is stored in hulk, in which t-he grain of different owners is mixed together; and public warehouses of class “0” shall embrace all other warehouses where property of any kind is stored for a consideration. Section 14 provides that the Governor shall appoint a suitable person, who shall not be a member of the board of trade, and who shall not be interested in any warehouse in the State, a chief inspector of grain for every city in which is located a warehouse of class “A.” This section was amended in 1879 by the passage of an act containing two sections. The first section so amended section 14 that the Governor was empowered to appoint a chief inspector of grain in every city or county in which is located a warehouse of class “B, ” but no such appointment shall be made except upon the application and petition of two or more warehousemen doing a separate and distinct business, residing and doing business in such city or county, and where there shall be a legally organized board of trade in such cities or counties, such application and petition shall be officially indorsed by such board of trade before such application shall be granted. The chief inspector is required to take an oath as other officers, and execute a bond, conditioned that he will faithfully and strictly discharge the duties of the office, according to law. The second section ' of the act declares: “Inasmuch as there now is a large quantity of grain in warehouses of class ‘B’ which can have no ' legal inspection, an emergency exists, therefore this act shall be in force from and after its passage. ”

It is true that under the act of 1871 no provision was made for the appointment of an inspector of grain for public warehouses in class “B, ” but this fact does not strengthen the argument of appellant. If no appointment was provided for, and none made, the owners or proprietors of warehouses of that class could conduct their business without inspection, as they did before the law of 1871 was passed. The seeming defect in the act did not, in our judgment, invest the board of trade of East St. Louis with the exercise of the important power of appointing inspectors of grain. If such had been the intention, language of a different character would doubtless have been employed. Section 19, of the act of 1871, prohibits a warehouseman of class “B” from receiving and mixing the grain of different owners until the same shall have been inspected, “in all places where there are legally appointed inspectors of grain. ” Who are the legally appointed inspectors, within the meaning of the legislature, as declared in section 19? They were not, in our judgment, inspectors appointed by the board of trade of East St. Louis, but were such as might be appointed under the law itself, as amended in 1879. This is the construction placed upon the language of section 19 by the legislature, in 1879, as is apparent from the language of section 2 of the amended act, which declares; “Inasmuch as there is now a large quantity of grain in warehouses of class ‘B’ which can have no legal inspection, an emergency exists,” etc. This legislative construction we believe to be the correct one. Section 20 of the act has a bearing on the question. It provides, “that any person who shall assume to act as an inspector of grain who has not first been so appointed and sworn, shall be held to be an imposter, and liable to be fined.” A legally appointed inspector, appointed and sworn, has the right to act. Obviously this means one appointed under the provisions of the law itself, and none other.

We are satisfied that the inspectors appointed by the board of trade of Bast St. Louis were not legally appointed, within the meaning of section 19 of the act of 1871, and that the power assumed by the board was without authority.

The judgment of the circuit court will be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Scott Mr. Justice Walker:

text:
    Chicago and Alton Railroad Company v. Joliet, Lockport and Aurora Railway Company.

      Filed at Ottawa November 20, 1882

      Rehearing denied March Term, 1883.

    1. Eminent domain—condemnation of right of way for a railroad across the right of way and track of another railroad—covenant to construct and keep in repair the crossing—its admissibility in evidence—and its effect upon the question of damages. In a proceeding for the condemnation of a right of way for a railroad across the right of way and railway track of another railroad, the petitioning corporation offered in evidence a stipulation or covenant, regularly signed by the petitioner, in which it was expressly stipulated by the petitioner “that it would and should, at its own expense, put in, and thereafter maintain in suitable and proper repair, the frogs and crossing across two main tracks of the defendant; that this stipulation should be binding on the successors and assigns of said petitioner so long as a grade crossing should be maintained at the crossing the right of ■way for which was being condemned therein.” It was held, this was a valid obligation, enforceable against the petitioner, and its successors and assigns, and was properly admissible in evidence.
    2. The obligation being a valid one, securing the construction and maintaining of the proposed crossing at the expense of the petitioner, its successors and assigns, the cost thereof could not become an element of damages in favor of the defendant corporation, and would operate to exclude any evidence on behalf of the defendant on that subject.
    3. The stipulation is sufficiently definite as to the manner in which the work of making the crossing was to be done, and as to what extent it would affect the defendant. A “suitable and proper” crossing, is a phrase well understood by civil engineers and practical railroad men. Any marked departure from the stipulation in that regard would afford to the defendant a right of action for the recovery of any damages occasioned thereby.
    4. The force and effect of the obligation, as an instrument of evidence, and as to the exclusion of all question of damages to arise from the expense in constructing and maintaining the crossing, in the proceeding for condemnation, are not at all impaired by the suggestion that it is a mere promise—an undertaking—which, by reason of financial embarrassment, or from other causes, may not be performed. It is a valid obligation. The covenant is thought to run with the land, and for any breach thereof a right of action is given which will afford complete indemnity to the company whose road is proposed to be crossed. It can not be presumed, in the absence of testimony on the subject, that the petitioner will be unable, from any cause, to perform its obligation.
    5. In this case the proposed crossing was upon grade, and it would be the duty of both parties to see to it that the crossing was properly constructed, and maintained in a safe condition, and in this respect it is to be distinguished from the case of Chicago and Alton Railroad Co. v. Sj)ringfleld and Northwestern Railroad Co. 67 Ill. 142, and 96 id. 274. In that case the crossing was not upon grade, but was an under-crossing, made by cutting through a high embankment under the track of defendant’s road, thereby removing all the support it had. It did not appear that the petitioning corporation was under any obligation by its duty to the public as a common carrier, or by any stipulation or otherwise, to keep defendant’s track above its own in a suitable and safe condition, so the expense incurred by the defendant company in that regard was a very proper element of damages in that case.
    6. SAME'—effect of stopping a train on approaching a railway crossing upon the hauling capacity of the engine—as an element of damag'es. It was represented in the case that if the crossing were established at the point proposed, the defendant company, in conforming to the requirement of the statute in respect to the stopping of trains on approaching a railroad crossing, at certain distances therefrom, would be compelled to bring its trains to a halt upon an ascending grade, and that thereby the hauling capacity of its engines would be impaired, and it was contended that such impairment ought to be considered as an element of damages. But the statute in question is simply a police regulation, with which all railroad companies are required to comply, the existence of which is subject to the will of the legislature, so it is of too uncertain duration to be made the subject of damages as for a perpetual inconvenience and injury.
    7. Moreover, it is a principle underlying all conduct, that neither a natural person nor a corporation can claim damages on account of being compelled to render obedience to a police regulation. Obedience to law is a service all citizens and corporations are bound to render to the State, and no damages can grow out of such act of obedience.
    Appeal from the County Court of Will county; the Hon. Benjamin Clin, Judge, presiding.
    Mr. George S. House, for the appellant,
    made the following among other points in his argument:
    Appellant can not, by any agreement with appellee, shift the burden the law imposes on it, of keeping its tracks at the point of intersection in a s.afe and secure condition. St. Louis, Jacksonville and Chicago R. R. Co. v. Springfield and Northwestern R. R. Co. 96 Ill. 274.
    The expense and loss thus created by the crossing is not for appellant’s benefit, and it ought not to be charged with it. If appellant,is entitled to be paid this sum in money, it is a vested right, of which it can not be deprived except on compensation. The compensation given it by the law can not be liquidated or satisfied in anything but money. Appellee can not compel appellant to accept a mere promise in lieu of money. If appellee fails to comply with the terms of its stipulation, it simply constitutes a cause of action, and nothing more. Appellee may not be able to perform the agreement, or the performance tendered or made by appellee may not be such as appellant shall regard as adequate, suitable and proper. In such case, where is appellant’s remedy ?

      It is the duty of the petitioner seeking to condemn a right of way over the right of way and tracks of the defendant company, to pay to the defendant a sufficient sum of money to enable the defendant to place and maintain its tracks at the point of crossing in as safe a condition, as nearly as the nature of the case will permit, as they were before the crossing was made. Chicago and Alton R. R. Co. v. Springfield and Northwestern R. R. Co. 67 Ill. 144; St. Louis, Jacksonville and Chicago R. R. Co. v. Springfield and Northwestern R. R. Co. 96 id. 275.
    The additional delays and inconvenience to appellant in being compelled to stop before reaching the proposed crossing, are proper to be considered as an element of damage. By making the new crossing, appellant is brought under the statute requiring such stoppage, etc., not for its benefit, or on its request for the benefit of the petitioner, and upon its motion. St. Louis, Jacksonville and Chicago R. R. Co. v. Springfield and Northwestern R. R. Co. 96 Ill. 275; Old Colony and Fall River R. R. Co. v. County of Plymouth, 14 Gray, 155; Lake Shore and Michigan Southern R. R. Co. v. Chicago and Western Indiana R. R. Co. 100 Ill. 21.
    Messrs. Garnsey & Knox, for the appellee:
    The stipulation filed with proof that it was the act of the corporation, and thus binding on it, was proper. It removed from the case contingent and uncertain elements, which might amount to a legal damage, and might not. J. and S. R. R. Co. v. Kidder, 21 Ill. 131; St. Louis, Jacksonville and Chicago R. R. Co. v. Mitchell, 47 id. 165; Elgin v. Eaton, 83 id. 537; Hyde Park v. Andrews, 87 id. 230; Hayes v. Ottawa, Oswego and Fox River Valley R. R. Co. 54 id. 375; Peoria and Rock Island R. R. Co. v. Birkett, 62 id. 335.
    The principle of the following cases is in accordance with the filing of this stipulation, as well as the eases before cited. They decide that net, and not gross damage, is to be paid for, if we may use such an expression. Curry v. Mt. Sterling, 15 Ill. 322; Peoria, Pekin and Jacksonville R. R. Co. v. Laurie, 63 id. 264; Mix v. Lafayette, Bloomington and Mississippi Ry. Co. 67 id. 319; Page v. Milwaukee and St. Paul Ry. Co. 70 id. 324; Chicago and Pacific R. R. Co. v. Francis, id. 238; Keithsburg and Eastern R. R. Co. v. Henry, 79 id. 294; Hyde Park v. Dunham, 85 id. 570; Hyslop v. Finch, 99 id. 171.
    Appellant is not entitled to recover damages for inconvenience caused by being obliged to stop its trains at the proposed crossings, nor for an increase in the expense of operating its road, caused thereby, such stop being made in obedience to the law. Sess. Laws, 1871-2, p. 634, title, and sec. 1; Rev. Stat. 1874, p. 8, title, p. 809, sec. 12; Repealing Statute, Rev. Stat. 1874, sec. 351; Cooley on Const. Lim. (2d ed.) 573—580; Thorpe v. B. and R. R. R. Co. 27 Vt. 140; G. and C. U. R. R. Co. v. Loomis, 18 Ill. 548; Ohio and Mississippi R. R. Co. v. McClelland, 25 id. 141; Munn v. People, 69 id. 80; Ruggles v. People, 91 id. 256.
    The foregoing cases are on the general subject of the exercise of the police power of the State. The following are all upon the precise question here involved, and the last cited is precisely like the present one: Fitchburg R. R. Co. v. B. and M. R. R. Co. 3 Cush. 58; Davidson v. Same, id. 105; Parker v. Same, id. 113; Old Colony R. R. Co. v. Plymouth, 14 Gray, 155; Grand Junction R. R. Co. v. Commissioners of Middlesex, id. 553; Bridgeport v. New York and New Haven R. R. Co. 36 Conn. 255; Lake Shore and Michigan Southern R. R. Co. v. C. S. and C. R. R. Co. 30 Ohio St. 604.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

This proceeding was commenced under the Eminent Domain act of 1872, on the petition of the Joliet, Lockport and Aurora Railway Company, to condemn the right of way for its own track across the right of way and track of the Chicago and Alton Railroad Company. The width of the right of way desired, and the angle at which petitioner’s road will cross defendant’s road at the point indicated, are stated with sufficient certainty in the petition to give a clear understanding of the manner defendant’s road-way will be affected. So, also, the use petitioner proposes to make of the strip of land sought to be condemned is stated to be, to build its railroad thereon, and operate its main tracks over and across the same, and it is then added, petitioner does not desire to appropriate and use such strip of land to its exclusive use, hut desires to use the same without prejudice to the rights of, and use thereof by, defendant, not inconsistent with the use thereof by petitioner for its main track or tracks. The defendant corporation answered the petition, and then filed a cross-petition. As the case is presented in this court it will not be necessary to state the contents of either of them. The case was submitted to a jury, who, after viewing the premises and hearing the evidence, assessed defendant’s damages at $150, and for which judgment of condemnation was rendered.

The first objection insisted upon to the regularity of the proceedings in the trial court arises on the admission by the court, over the objection of defendant, as evidence, a stipulation, regularly signed by petitioner, of which, omitting the date and signatures, the following is a copy: “In the above entitled cause, now pending in the county court, * * * and about to be laid before a jury impanelled for that purpose by the court, it is hereby expressly stipulated by said petitioner, the Joliet, Lockport and Aurora Railway Company, that it will and shall, at its own expense, put in,' and thereafter maintain in suitable and proper repair, the frogs and crossing' across two main tracks of the defendant; that this stipulation shall be binding on the successors and assigns of said petitioner so long as a grade crossing shall be maintained at the crossing, the right of way for which is being condemned herein.” Notwithstanding this covenant on the part of the petitioning corporation, defendant offered to prove what would be the cost and expense necessary to keep a crossing on its railroad, at the point where it is proposed to. make this crossing, in proper and suitable repair, including frogs, rails, or other appliances necessary to a proper railroad crossing, and the necessary renewals. The court sustained an objection to the giving of the proposed testimony, for the reason petitioner had stipulated to construct and maintain the crossing in proper repair at its own expense, and hence defendant could not account such expense as an element of damages, and in its charge the court made its instructions to the jury conform to this view of the law. If it shall be held the agreement of petitioner to construct, and thereafter maintain, at its own expense, a proper and suitable crossing at the point in question, is a valid obligation, enforceable against petitioner, its successors and assigns, and was properly admissible in evidence, it follows, as a matter of course, the decisions of the court in rejecting the evidence tendered and in giving instructions in respect to the same matter, were entirely correct. That the stipulation was executed in a manner to be obligatory on petitioner, its successors and assigns, is so manifest that no point is made against it in that respect, and under the previous decisions of this court no reason is perceived why it was not admissible in evidence.

Since the decision in the case of Jacksonville and Savanna R. R. Co. v. Kidder, 21 Ill. 131, the practice has always been, in condemnation cases, to admit in evidence the plans of the work proposed to be done or the land taken, otherwise it could not be so well known how the projected improvement would affect the residue of the property. It is practicable, of course, to so construct a public improvement as to make it of greater or less damage to the land over which it passes, and the extent of such injury can not be justly estimated unless the character of the work to be done shall be first ascertained from plans and specifications that shall be thereafter adhered to by the corporation condemning the land to its use. In the case of St. Louis, Jacksonville and Chicago R. R. Co. v. Mitchell, 47 Ill. 165, it was held the^ cost of erecting and maintaining the fences along the track was a proper element of damages in condemning land for railroad purposes, and accordingly evidence offered tending to show the company had contracted for the building of the fence through the owner’s land within a short period, was deemed admissible, and it was decided to be error in the trial court to exclude it. In Hayes v. Ottawa, Oswego and Fox River Valley R. R. Co. 54 Ill. 373, it was held a stipulation, the company condemning the land would erect certain depots of a cliaractér designated, and would construct suitable farm crossings, and maintain the same with bars, gates- or cattle guards, as should be necessary for the accommodation of the owner of the land through which the railroad would pass, and would build and maintain a fence on each side of the track, was admissible in evidence.

Any marked departure from the plans, as shown in the profile submitted, or from the stipulation in evidence, as to the character of the work to be done, would subject the corporation making the condemnation to an action for damages, in favor of the land owner. The cases ut supra settle this doctrine fully, and in Peoria and Rock Island Ry. Co. v. Birkett, 62 Ill. 332, it was said: “The company must construct the road as indicated by its plans and maps introduced on the trial. If these should be changed, the land owner could recover any damages resulting from the change. ’’ The case being considered comes precisely within the principle of the cases in this court. The stipulation in evidence shows definitely how the work of making the crossing will be done, and to what extent it will affect defendant. A “suitable and proper” crossing, is a phrase that must be well understood by civil engineers and all practical railroad men. As to the character of the work to be done at the crossing there is no ambiguity in the stipulation. In thig respect it is certainly as definite as any stipulation found in any of the reported decisions of this court, where the proceeding was between a citizen whose land would be taken and the corporation exercising the right of eminent domain, and it is apprehended the rule applicable in such cases is the same where both parties are railroad companies. The law, of course, makes no distinction as to the character of the parties concerned.

The objection of most seeming plausibility to the admission of the stipulation in evidence in this case is, it is a mere promise,—an undertaking,—and if petitioner fails to comply with its terms it simply constitutes a cause of action,—nothing more. It is not that it is a promise or an undertaking, for if it is valid, and should be performed as fully as is covenanted it shall be, it would work no injury to defendant; but the objection is, the promise or undertaking may not, on account of financial embarrassment, or from other cause, be performed by petitioner, and that would leave defendant with simply a cause of action,—nothing more. So runs the argument of counsel. The same argument might have been made in all cases where stipulations have been made by the corporation condemning land for public uses, and on failure of performance the land owners would have an action, as the eases all hold; but such stipulations have not been rejected for that reason. Such covenants are thought to run with the land, and the right of action would always afford complete indemnity to the land owner. The rule applicable to private owners in this respect applies with equal force to railroad or other corporations. In case of any failure to perform the stipulation on the part of petitioner, it is asked, what remedy has defendant ? Precisely the same as the private land owner would have against the corporation exercising the right of eminent domain, and making a stipulation for his benefit. No importance need be attached to the suggestion petitioner may not perform its undertaking, but it may be answered by a reason having nothing more in its support,—that is, suppose defendant should recover damages for the perpetual maintenance of this crossing, and should fail to keep it in suitable repair, what remedy would petitioner have? Simply an action, and nothing more. In the absence of all evidence, there is no warrant for saying defendant is, financially, more able to perform its undertakings in this respect than is petitioner, or that it is more likely to do so. Both parties are common carriers of passengers and freights, and both are under the highest obligations to the public to observe that this crossing is kept in repair, so that it may be entirely safe for the passage of trains, and it may reasonably be presumed both corporations will omit no duty in that regard. One party is as much interested in its maintenance in a suitable condition as is the other, and should it become unsafe through use, or for other cause, either party might, and it would be its duty to, make all needed repairs, and on the party obligated to maintain such crossing would rest the expense of such repairs, and the same might be recovered in an action.

The case being considered bears no analogy to Chicago and Alton R. R. Co. v. Springfield and Northwestern R. R. Co. reported in 67 Ill. 142, and also in 96 id. 274. That, it will be observed, was not a grade crossing, but was an under-crossing, made by cutting through a high embankment under the track of defendant’s road, thereby removing all the support it had. Nothing appears in the report of the case that shows the petitioning corporation was under any obligation by its duty to the public as a common carrier of passengers or freights, or by any stipulation or otherwise, to keep defendant’s track above its own in a suitable and safe condition. In the first opinion delivered in the case it was said, defendants, “as common carriers of persons and property, would after, as before, be subject to the duty of keeping their track at the point in question in a safe and secure condition, and the burden would not be shifted by the judgment of condemnation upon” the petitioning corporation. It was for that reason, it was held that the evidence of the cost of erecting and maintaining a bridge over the track of petitioner’s road was proper evidence on the assessment of damages, and that defendant was entitled to have such sum for damages as would enable it to construct and keep in repair all such works as might be necessary to keep its track in a safe and secure condition. The principle of that case has no application to the case in hand. Here, both tracks cross on grade, and the railway company asking the condemnation to be made is under the highest obligation to the public as a common carrier of persons and property, as well as its stipulation in favor of defendant, and which is made a part of the record, to construct and keep the crossing in a safe and secure condition for the use of both carriers, and that obligation, resting as it'does on a sufficient and continuing consideration, will endure as long as it will be necessary to maintain such crossing at the point in question. There was, therefore, no error in admitting the stipulation in evidence,—indeed,- it would have been error to have excluded it.

Another ground relied on with much confidence is, that by the rulings of the trial court defendant was denied the privilege to prove what effect, if any, the construction of the crossing at the point in controversy would have on the hauling capacity of its engines employed in drawing both passenger and freight trains, in consequence of having to stop its trains in obedience to that provision of the statute which requires that all trains run on any railroad in this State which crosses any other railroad on the same level shall be brought to a full stop within certain distances specified,— and that, it is said, is error. The court, in giving instructions on this branch of the case, made them conform to the theory on which the evidence tendered was excluded, and the rulings in both respects will be considered together.

It appears from the evidence introduced as to the grade of defendant’s road, that the track, both ways from the point where it is proposed to construct the crossing of petitioner’s road, is practically on a level. A change of grade commences two hundred feet south. It begins to descend from there, and for a distance of four hundred feet it is thirteen and two-tenths feet per mile. Commencing at the point of intersection and running north, as the evidence is understood, defendant’s track, for some distance, is practically on a level, and then commences an elevation, the altitude per mile being stated. In view of this condition of defendant’s track at and near the point of intersection of the two roads, both north and south, defendant asked a witness who was familiar with the grade of the road at the place of intersection, the following question: “Upon the theory that a crossing were to be made at this point of this proposed crossing, and the trains of the Chicago and Alton railroad were to stop at a point distant not less than two hundred feet or more than eight hundred feet from the center line of that crossing, and start again, coming to a dead halt not nearer than two hundred feet or distant more than eight hundred feet of the proposed crossing, what effect, in your judgment, would it have on the hauling capacity of the engines employed by the Chicago and Alton railroad in their service past this point, —in their freight service past this point?” This question was objected to, on the ground defendant had no right to recover for any damages which might be occasioned by reason of its servants having to stop their trains at this crossing in obedience to the law. In sustaining the, objection the court said: “If the defendant proposes to show that these stops or halts will be occasioned, not by force of any statute or police regulation requiring stops or halts on approaching railroad crossings, but, independent of such police regulations or statute, will be required by.reason of the proposed track of the petitioner across the railroad track of the defendant, then I think the question may be answered as being competent on this point, otherwise the objection is sustained. ” Objections to other questions of the same import, only differing in phraseology, were sustained by the court. Exceptions to the rulings of the court were taken in the usual manner upon the interrogatories propounded, so far as the interrogatories involved the existence of any law or police regulation requiring the stopping of trains at railroad crossings.

The questions arising on the rulings of the court on this branch of the case are of first impression in this court, and have been considered with that care their importance demands, and the conclusion reached is, the rulings of the court may be sustained, both on principle and authority. Without the construction of the crossing asked for by the petitioner, it is said, obedience to law in reference to stopping trains at crossings of other railroads is not demanded of defendant in running its trains between Lockport and Joliet, and because after the crossing is constructed defendant will be compelled to stop its trains on approaching such crossing from either direction, it is argued the inconveniences and other embarrassments that will be experienced are elements to be considered in estimating the “just compensation” that should be paid for the injuries sustained. This is a mistaken view of the law. The statute in question is simply a police regulation, valid and binding on all railroad companies in the State, whether incorporated before or since its passage. Its duration rests in the will of the General Assembly. The decision may be placed on a principle underlying all conduct,—that is, that neither a natural person nor a corporation can claim damages on account of being compelled "to render obedience to a police regulation designed to secure the common welfare. That is a duty every one owes to government for the protection it affords. Corporations, as well as citizens, are subject to the police power of the State. So far as defendant would suffer injury on account of having to stop its trains at the crossing for reasons other than compliance with the statute, the'court distinctly ruled, evidence of such damage, if any, might be given. , The rulings of the court in that regard were as broad and liberal as the law will warrant. Under the laws of this State, (and so its policy is,) one railroad has the right to cross the track of another, and if they can not agree upon the amount of compensation to be made therefor, or as to the points and manner of such crossing, the same shall be ascertained and determined in the manner prescribed by law. Should it be held that before a new railroad could be laid across the track of a railroad previously constructed, the damage for any inconvenience such company might suffer on account of having to submit to and observe police regulation in regard to the conduct of its business thereafter should first be ascertained and paid by the new road, it would amount to a practical prohibition on the construction of-new railroads in the State. A railroad company has no vested right to run its trains in defiance of public statutes designed to promote the public good, and no principle is perceived on which such corporations can demand compensation for obedience to such statutes. Immunity from police regulations and restraints would secure to corporations rights not possessed by citizens of the State.

Unless, therefore, every railroad corporation takes its right of way subject to the right of the public to have other roads, both common highways and railways, constructed across its track whenever the public exigency might be thought to demand it, the grant of the privilege to construct a railroad across or through the State would be an obstacle in the way of its future prosperity of no inconsiderable magnitude. The claim made for damages, in this respect, has neither reason nor the weight of authority for its support. In Railway v. Railway, 30 Ohio St. 604, it is well said: “While the elder road can demand compensation for its property to the extent of its appropriation, it has no right to demand tribute from the junior road for the enjoyment of the same corporate franchises that it possesses. Each owes its authority to operate its road to the same source,—the State,—and neither has the right to tax the other for the enjoyment of these mutual privileges. It is true that the crossing imposes a new burden, but it is one to which it is subject by the nature of the case and the terms of its charter. ” Other courts of acknowledged authority sustain the same general doctrine. (Massachusetts Central R. R. Co. v. Boston, Clinton and Fitchburg R. R. Co. 121 Mass. 125.) But aside from all authority, on principle, no compensation ought to be allowed, in any case, for mere obedience to law. That is a service all citizens and corporations are bound to render to the State in consideration of the common protection bestowed. See Peoria and Pekin Union Ry. Co. v. Peoria and Farmington Ry. Co. (ante, p. 110.)

The point is made, both by the argument and the instructions asked by defendant, that on account of defendant having to cause its trains to be stopped in compliance with the statute, there is a reduction in the hauling capacity of defendant to do business at and over the point of such crossing, and hence it should be paid in money a sum sufficient to make good any reduction in the hauling capacity of its engines ■ that may be shown by the evidence. Beyond mere nominal damages it is difficult to adopt any rule for the admeasurement of any actual damages in such cases. It would involve the consideration of so many collateral facts as would make the claim insisted upon shadowy and uncertain. ■ What is the capacity of defendant’s engines to move trains, would have to be ascertained by first ascertaining their utmost capacity at the different grades on its entire line of road. This court may take judicial notice of what may be known by common observation. So it may be assumed defendant’s main line of road is well nigh, if not quite, three hundred miles in length. To ascertain the capacity of defendant’s engines at the most difficult grade on the entire line would necessarily require considerable measurements, and many experiments. When that fact shall have been ascertained, the embarrassment in arriving at a conclusion as to the hauling capacity of such engines at the crossing in question has only been met, but not overcome. Are there no other crossings of other railroads where the law makes it obligatory on defendant to cause its trains to come to a full stop, equally as difficult as this one? Should the difficulty at this point be removed, could they surely pass others, hauling the same number of cars or coaches ? But a still more troublesome question remains. Would it be practicable to prove when, or how often, if ever, the necessity would exist to move as heavy trains at this point as elsewhere on defendant’s line of road ? There may be, and doubtless are, many through trains over defendant’s road that would require the same motive power on the entire track; but at what point shall the capacity of its engines be estimated? Shall it be at this crossing, or elsewhere on the road ? These and many other difficulties that might be suggested make the class of damages insisted upon too remote, uncertain and shadowy to be considered as an element in the actual damage sustained. The rule on this subject is stated in Jones v. Chicago and Iowa R. R. Co. 68 Ill. 380, to be, that the. amount allowed should be sufficient to cover all actual damage by reason of the construction of the road, for the land taken, for all physical injuries to the residue, and for all inconveniences of every character produced; but nothing should be allowed for imaginary or speculative damages, or such remote or inappreciable damages as the imagination may conjure up, and which may or may not occur in all the future. That has been done in this case. All the actual damage defendant will suffer has been liberally compensated by the judgment rendered, but nothing was, and nothing should be, allowed for those possible difficulties and embarrassments that may never be experienced by defendant in the profitable and successful transacting of its legitimate business.

The judgment does substantial justice, and must be affirmed, which is done.

Judgment affirmed.

Dickey and Sheldon, JJ., dissenting.

Separate opinion by Mr. Justice Soholfield :

Although concurring in the opinion that appellant is not entitled to recover for damages presumably to be sustained by reason of being compelled by statute to stop its trains before crossing the track of appellee’s road, yet, since the language here employed does not fully and accurately express my opinion, I prefer to briefly state, in my own way, the views I entertain upon this question.

I am unable to perceive any distinction, in principle, between cases where, by statute, a railroad company is required to stop its trains before crossing the track of another road, and eases where the same stoppage is rendered necessary by reason of the prior occupancy of the way by the cars on the other road, or by reason of dangef of collision with the cars of the other road. In either case, if the company thus compelled to stop its trains has a legal right to continuous and unobstructed passage upon its track, such stoppage must ■invade that right, and in neither case, if it does not have such right, can there be any legal invasion of a right for which damages can be recovered.

The inquiry then must be, has appellant here shown a franchise (that is, a legal property right,) to move its cars from one end of its road to the other, without other hindrance or delay than such as was necessitated by the existence of things when its charter was granted ? It is not sufficient to show that it has a property right to use its track as a railroad, to the exclusion of all others,—no one denies that. But even that is subject to condemnation, and when another road has condemned and paid for the privilege of using so much of that track as is devoted to its crossing, that property in the track is compensated for, and each road then, with reference to that much of what was before the property of the one, is an owner in common with the other, and equally entitled to its use, still leaving the question whether the company whose road is to be crossed, has, in addition to the ownership of its tangible property, an ownership of an intangible property, consisting of a mere prior right of passage.

It needs no demonstration to prove that mere priority of occupancy or use gives no priority of right to that which is free to all,—and this, obviously, includes the right of locomotion. A railroad company’s right of moving its trains differs only from rights of locomotion generally, in that it .must always move, and can only move upon the line of its tracks, and while it has this right, natural individuals and corporations have the same right of locomotion that it has,— not upon its tracks, without paying for them, but generally. Neither has precedency, but all are entitled to it as a common right. If this were not so, in a highly improved and old settled country the last comers would find the entire country preoccupied, so that locomotion would be practically, if not literally, impossible. The development of the country, its material prosperity, and even the comfort and convenience of the citizens, render it necessary that railroads should be built and operated in every direction, and so, necessarily, oftentimes crossing each other. And this necessity has always been so obvious that it can never be presumed the legislature has bound its hands in regard to it, by contract in the .nature of a grant, in the absence of unmistakable language to that effect,—if, even then, it could be held to have done so,—for it would, in effect, be parting with one of its sovereign rights, which is indispensable to the welfare of the State. See Charles River Bridge v. Warren Bridge, 11 Pet. 420.

Appellant’s charter contains no contract obligating the State not to charter or permit the building of railroads crossing its track, or that passage upon its line of railway shall not be delayed or hindered. It simply creates a corporation, with the usual powers to construct and operate a railroad. In addition, therefore, to the right to be a corporation, the privilege of running the road and taking tolls for fare and freight is the essential franchise conferred. Thorpe v. R. and B. R. R. Co. 27 Vt. 146.

If appellant could claim, as a part of its franchise, that it was entitled to pass its cars from one end of its line to the other without any other hindrances, delays or burdens than those in existence when its charter was granted, then any statute subsequently passed, requiring its cars to .slacken speed or stop, where before they were not required to slacken speed or stop, or requiring a care and labor not then required, would impair the obligation of the contract evidenced by its charter, and be in contravention of section 10, article 4, of the constitution of the United States, and hence void. The opening of new common highways across railroad tracks necessarily increases the care and labor of the railroad companies in order to avoid collisions. Where villages or cities spring up along the lines of railways, and their streets are laid out across the railway tracks, the care and labor to avoid collisions is very materially increased, and the speed of trains must, of necessity, be to some, extent slackened. In all these cases, if the railroad charter is held to amount to a contract that passage upon the line of its railway shall not be delayed, hindered or burdened, the highways and streets can not lawfully be laid out until the railroad company is compensated for the additional burden it will thus have to bear,—nor can the village or city, by ordinance, require the speed of trains to be checked, where compensation for the attendant loss has not been first provided for. This has never been supposed to be the law here, nor, so far as we -know, has it been held to be the law elsewhere. Statutes and ordinances requiring the checking of the speed of trains, the ringing of bells and the sounding of whistles before crossing highways or streets, or within the limits of cities and villages, have been held reasonable police regulations, without regard to whether the streets or highways were laid out, or the village or city was platted and has been built up since or before the granting of the railroad charter, and without regard to whether compensation has been made to the railroad company for loss or injury thus sustained. Among other cases, see G. and C. U. R. R. Co. v. Loomis, 13 Ill. 548; G. and C. U. R. R. Co. v. Dill, 22 id. 264; G. and C. U. R. R. Co. v. Appleby, 28 id. 283; Ohio and Mississippi R. R. Co. v. McClelland, 25 id. 140; Chicago, Burlington and Quincy R. R. Co. v. Haggerty, 67 id. 113; and, also, Cooley’s Const. Lim. (4th ed.) 718, et seq.

There being no contract, express or implied, giving the elder company priority of mere locomotion, the right of each in this regard is to be enjoyed with reference to the equal rights of all others; and this, 'it is to be presumed, was intended when the charter was granted appellant. It took its charter subject to the rights of other railroads thereafter to be chartered and built to cross its track, upon making compensation for injury to its property,—that is, its soil and track, and other improvements annexed to the soil, if there are such,—with the equal rights of moving trains upon their tracks that appellant has upon its track, neither having priority of right in that regard. And this view has the sanction of Massachusetts Central R. R. Co. v. Boston, Clinton and Fitchburg R. R. Co. 121 Mass. 124; Old Colony and Fall River R. R. Co. v. County of Plymouth, 14 Gray, 155; Railway v. Railway, 30 Ohio St. 604

For so much of the right of way and track as' is taken or appropriated to use, and for damages, if any are sustained, to right of way and track and fixtures, no one denies the right of recovery. I think, where the crossing necessitates the raising or lowering of the grade in order to the operation of the road as efficiently as it was before operated, the expenses of so doing may properly be taxed against the road seeking the condemnation. The prior company built its road with reference to the condition of things as they then were. In the absence of notice it could not be anticipated a crossing would be at a particular place, and so the company was not required to build its track with reference to such crossing. The party seeking condemnation selects the particular crossing, and thereby renders necessary the expenditure of money to adapt the track to that crossing, and should pay whatever may be required for that purpose. Crossings may be selected (as in Lake Shore and Michigan Southern Ry. Co., et al. v. Chicago and Western Indiana R. R. Co. 100 Ill. 21,) at places where to allow them is to practically destroy switches, sidings, turnouts, etc. In such cases, I concede, the company condemning must pay all damage thereby occasioned to the tangible property in its connection with and relation to the road of which it is a part; but in such case I do not think there should be any damages allowed for mere stoppages to give priority to other trains, or to comply with statutory requirements. If the switch or siding can not be operated efficiently with a crossing over it, it should be removed elsewhere, and the condemning road taxed with the damages thereby occasioned. If it can be so operated, but only after incurring additional expense, the condemning road should be taxed with that expense.

Mr. Justice Walker:

I concur in the views expressed in this separate opinion of my brother Scholfield.