pany. Plaintiff obtained judgment, which was affirmed by the appellate court. 52 Ill. App. 277. Defendant appeals. Reversed.

William Brown and Williams & Capen, for appellant. Calvin Rayburn (Owen T. Reeves, of counsel), for appellee.

BAKER, J. This is an action on the case, instituted by appellee against appellant in the circuit court of McLean county, to recover damages for personal injuries alleged to have been sustained by him through the negligence of appellant. At the November term, 1892, of said court, the cause was tried before a jury, who returned a verdict in favor of appellee, and assessed his damages at $2,000. At the succeeding February term, appellant's motion for a new trial was overruled, and judgment was rendered against him for the amount of the damages assessed by the jury, together with interest and costs. Upon appeal to the appellate court for the Third district, that judgment was affirmed.

The amended declaration charged, in substance, that on April 23, 1891, appellee became a passenger on a freight train, as a groom for a stallion being transported from Bloomington to Eldorado, Kan.; that when the train stopped at Tallula, an intermediate station, he was ordered by appellant's servants to alight from the caboose, and pass along the train, between the main track and the side track, to the car in which was the stallion, for the purpose of closing the car door, which, through some defect in its condition, had not been closed, and that, while appellee and appellant's servants were endeavoring to close the door, another train of appellant was run in upon the switch, in a negligent manner, at a high rate of speed; that there was a space of only eight feet between the side and main track; and that about the time the train came in upon the side track the train on which appellee was a passenger started out, and in returning along the space between the two trains, to his caboose, he was struck and injured.

was

Complaint is made by appellant of all the instructions given by the trial court on behalf of appellee. The objections urged, however, are without merit, except as to the ninth instruction. That instruction clearly erroneous. It was as follows: "The court instructs the jury that plaintiff was rightfully upon the space between defendant's tracks at the time the injury complained of occurred, and he had a right to rely upon the directions, if any, given him by defendant's servants in charge of the train, unless he knew he would, in obeying said instructions, recklessly expose his person to danger; and if you find from the evidence that plaintiff was injured because of the negligence of the defendant in handling its trains while the plaintiff was in an exposed or dangerous place, and the plaintiff was exercising due care, then you should find the issue for the plaintifi.". It told the

jury, as a matter of law, that appellee was rightfully between the tracks. That was a controverted question, and one of the vital points in the case. It should have been left to the jury to determine, from the evidence before them, whether or not he was rightfully there.

was

Complaint is also made of the action of the trial court in modifying instructions numbered 1, 2, and 3, asked by appellant. The following, without the words in italics, are said instructions as asked, which the court modified by adding those words, and then submitted to the jury: "(1) Neither the conductor nor brakeman on a freight train has any authority in law to call upon a passenger to get off the train, and assist a trainman in fixing a door of a car. And if a passenger is so requested by a trainman, and does so get off, by means of which the passenger is hurt, it is his own voluntary act; and he cannot recover for such hurt, unless the injury caused by other negligence of the defendant. (2) Even should you believe from the evidence that the brakeman asked plaintiff to get off to help fix the door, yet the plaintiff was under no obligation to obey such request, and if he did so it was his own voluntary act; and if, in so doing, he got hurt, without other fault of defendant, he cannot recover for such hurt, and you should find the defendant not guilty. (3) In the absence of notice to engineers and conductors of each of defendant's trains that plaintiff was in such a position of peril as to be liable to suffer harm by the movement of their trains, then they were not guilty of negligence in running their trains in the usual manner in which freight trains were operated at Tallula." We can see nothing harmful to appellant in the modification of instruction No. 3. The court, erred, however, in modifying Nos. 1 and 2, for, as modified, they authorized a recovery for negligence not charged in the declaration. The negligence charged in the declaration was the alleged wrongful order of appellant's servants, in obedience to which appellee claimed to have gone into a dangerous place. It was improper to tell the jury that, if that charge was not sustained, appellee might recover, if "the injury was caused by other negligence of the defendant." For the errors indicated herein, the judgment of the appellate and circuit courts will be reversed, and the cause remanded to the latter court. Reversed and remanded.

BAKER, J. This was an action to recover damages by appellee from appellant for an alleged personal injury. The case was tried by the McLean county circuit court, and judgment rendered for appellee. Appeal was taken to the appellate court; and, upon hearing in that court, the judgment of the circuit court was reversed, and the cause remanded. Railroad Co. v. Matthews, 39 Ill. App. 541. Upon remandment, the cause was again tried in the McLean county circuit court, and judgment was rendered for appellee for $4,000; whereupon appellant appealed to the appellate court, Third district, and, upon a hearing by that court, the judgment of the circuit court was affirmed. 48 Ill. App. 361. Appeal is taken to this court to reverse that judgment. The declaration consisted of four counts, two of which charged negligence on the part of appellant, in that it permitted the bridge to be built over its tracks, and that it permitted a certain freight car of more than ordinary height to be placed in its train. The other two counts charged the same negligence, and that it was negligence in appellant in not placing any danger signals on the bridge. To this declaration appellant pleaded not guilty.

The only errors insisted upon in this court are the giving and refusal to give instructions. Nine instructions were given on behalf of plaintiff. Seven are objected to as erroneous. The most that can be said against these instructions, or either of them, is that they were inaccurate, and might possibly have misled the jury to the prejudice of the defendant. Some of the criticisms made upon them are just; while others are, in our opinion, exceedingly technical. It was not reversible error to instruct the jury in regard to the doctrine of comparative negligence, and especially so since it was so explained as to amount to no more than laying down the rule that, in order to entitle the plaintiff to recover, he must prove that he exercised due care to avoid the injury. On behalf of the defendant, the court instructed the jury most explicitly that the plaintiff could only recover by proving, by a preponderance of the evidence, that the defendant was guilty of the negligence charged in his declaration, or some count thereof, and that he (the plain

tiff) was at the time in the exercise of due care. We cannot believe from an examina. tion of all the instructions given that the jury was misled by them. No good purpose would be served by passing upon them separately. It is also insisted that the circuit court erred in refusing certain of the instructions asked by the defendant. The jury was so fully and fairly instructed on its behalf, and all its rights so fully guarded by those given, that no just complaint can be made as to those refused. We see no reversible error in the record. Therefore the judgment of the appellate court will be affirmed. Affirmed.

CHICAGO & A. R. CO. v. NELSON.1 (Supreme Court of Illinois. Oct. 30, 1894.) NEGLIGENCE-EVIDENCE-INSTRUCTIONS.

A boy 10 years old, while standing in a street, near a railroad track, waiting for a train to pass by, stepped back from the track to avoid the train, and thereby fell against a pile of ashes left in the street by the railroad company. slipped under the cars, and was killed. Held, that there was sufficient evidence of the railroad company's negligence and the boy's exercise of due care to justify submitting these issues to the jury. 53 Ill. App. 151, affirmed.

Appeal from appellate court, Third district. Action on the case by Gustave Nelson against the Chicago & Alton Railroad Company. Plaintiff obtained judgment, which was affirmed by the appellate court. 53 IIL App. 151. Defendant appeals. Affirmed. Wm. Brown and Greene & Humphrey, for appellant. Charles E. Selby and Conkling

& Grout, for appellee.

BAILEY, J. This was an action on the case, brought by Gustave Nelson, administrator of the estate of Ingeman Nelson, deceased, against the Chicago & Alton Railroad Company, to recover damages for the death of the plaintiff's intestate. The deceased was killed by one of the defendant's cars at or near the intersection of Third and Carpenter streets, in the city of Springfield. The defendant's main track and several of its side tracks are laid on and along Third street, a street running north and south; and the defendant's employés in charge of its locomotive engines had been in the habit of discharging ashes and cinders from the engines upon the main track immediately south of Carpenter street,-a street running east and west and crossing the tracks. These ashes and cinders, after being discharged from the engines upon the main track, were shoveled by the defendant's employés over onto the space between the main track and the side track next east of it, from which point, after they had accumu lated, they were shoveled onto the cars and carried away. On the day the plaintiff's intestate was killed a pile of ashes and cinders

had accumulated, and was allowed to remain, between the main track and the side track next east therefrom, extending from the sidewalk on the south side of Carpenter street from 40 to 50 feet south, and being, according to the various estimates of the witnesses, from 1 to 2 or 3 feet in height in the middle, and sloping down to the track on either side. The deceased at the time was living with his parents, on Carpenter street, between one and two blocks west of the railroad. On Sunday, the 18th day of December, 1892, with his brother and sister, both younger than he, he started from home to go to Sunday school, which was held on the corner of Carpenter and Fifth street, that being two blocks east of the railroad. They walked along the sidewalk on the south side of Carpenter street, and as they reached the railroad a freight train, consisting of a locomotive and 23 or 25 freight cars, was approaching; the train moving, as the only witness who was examined on that subject testifies, about as fast as a man would ordinarily walk. The deceased and his brother succeeded in crossing the track in front of the train, but their sister, a little girl about six years old, failed to get across, but remained behind, and thus became separated from them. The deceased and his brother both stopped on the east side of the main track, waiting for the train to pass by, both being apparently solicitous for the welfare of their little sister, and both endeavoring to get a view of her through the openings under the train. The deceased, thinking that he and his brother were both too near the train, cautioned his brother not to remain so close to it, as the cars might hit him, and at the same time endeavored to step back himself. He seems to have been standing, or to have stepped onto, the end of the pile of ashes at the edge of the sidewalk; and as he endeavored to step back his footing gave way, and he slipped under the car, and was caught by the machinery of one of the trucks, and received the injuries of which he soon afterwards died. The declaration alleges, in substance, that the defendant was occupying with its tracks a considerable portion of Third street near Carpenter street crossing, and that on and before the day the deceased was killed it negligently and wrongfully threw from its engines large quantities of ashes and cinders, onto the street, outside of its tracks, and close by the side thereof, and made great piles of the same in Third street, near Carpenter street, and allowed them to remain there and make the street rough, uneven, dangerous, and slippery for persons passing along or being upon the street, so they were liable to trip, slip, tumble, or fall upon the street, and over, upon, and across the railroad tracks therein, and that the deceased, in attempting to step further away from the defendant's track, to avoid the train, with due care and caution for his personal safev.38N.E.no.12-36

ty, accidentally and unavoidably stepped against and onto the pile of cinders and ashes so placed on the street by the defendant, and unavoidably, while using due care for his own safety, was tripped and thrown down by the pile of cinders, to and upon the track, and under the cars, and was killed. The defendant pleaded not guilty, and at the trial the jury found the defendant guilty, and assessed the plaintiff's damages at $1,500, and for that sum and costs the plaintiff had judgment. That judgment has been affirmed by the appellate court on appeal, and this appeal is from the judgment of affirmance.

It was contended by the defendant in the appellate court that the verdict and judgment were not supported by the evidence, but, the judgment of that court having conclusively settled all controverted questions of fact in favor of the plaintiff, the defendant has very properly abandoned all contentions of that character in this court, the only proposition submitted here being that the court erred in giving to the jury the following instruction at the instance of the plaintiff: "The court instructs the jury in this case that if you believe from the evidence that the defendant placed ashes or cinders on the street where the injury complained of occurred, as charged in the declaration, and that such act was negligence on the part of the defendant, as charged in the declaration, and that by reason thereof the deceased, Ingeman Nelson, was injured and killed, ascharged in the declaration, and that it might. have been reasonably foreseen that somesuch injury as that received by said deceased would be likely to occur, as the result of such negligence, and that the deceased was at the time exercising, for his own safety, reasonable care and diligence for one of his years and capacity, then you will find for the plaintiff." The objection urged to this instruction is, not that it fails to lay down a correct proposition of law, but merely that there was no evidence before the jury tending to show either negligence on the part of the defendant, or the exercise of due care on the part of the deceased. We are of the opinion that this objection cannot be sustained, and that there was evidence upon both points sufficient to justify their submission to the jury. It seems clear that the pile of ashes and cinders described by the witnesses was an unwarrantable and dangerous obstruction upon the public street, and that the act of the defendant in placing it upon the street, and maintaining it there, was one which the jury were justified in pronouncing negligent. It certainly tended to establish negligence, and therefore presented a proper question for the consideration of the jury. Nor does there seem to be any want of evidence tending to establish a causal connection between the act of the defendant in placing and main taining the pile of ashes and cinders on the street, and the injury which resulted in the death of the plaintiff's intestate. It appears

that he was standing on the east side of the train, waiting for his little sister, who had been left on the other side, and that, in attempting to move back from the cars so as to better secure his own safety, he stepped upon the pile of cinders, and that as he did so his footing gave way, thus precipitating him under the cars, and causing his death. Nor, in our opinion, is there any want of evidence tending to show the exercise of due care on the part of the deceased. In determining the nature and degree of care he was bound to exercise, it must be remembered that he was a boy less than 10 years of age, and that such care only was required of him as might be reasonably expected of a boy of his age and intelligence. It is also to be remembered that his little sister, whom he had in charge, had been accidentally separated from him, and had been left on the other side of the train, and that he was naturally and properly solicitous for her safety. It was but natural that he should remain near the train, and that he should be endeavoring to assure himself that his sister was not in a place of danger. It was proper for the jury to interpret his conduct in the light of all these facts, and to determine from all the evidence whether his conduct manifested that degree of care for his own safety which might properly be expected from him under the circumstances. But there is direct evidence that he was on the alert for his own safety, as well as that of his brother and sister. It is shown that, as he and his brother were standing near the train, he observed that they were so near as to be in some danger of being struck by it, and that he admonished his brother to move further away, and attempted at the same time to move further away himself, but that in doing so he stepped upon the pile of cinders, and thereby lost his footing, and slid down under the cars. Here was certainly evidence tending to show the exercise of care on his part, making the question one of fact for the jury. It cannot be said, therefore, that there was no evidence tending to support the instruction, and that it was error to give it for that reason. No other error is now complained of. The judgment of the appellate court must be affirmed. Affirmed.

CHICAGO & A. R. CO. v. PEOPLE ex rel. HUNT, Atty. Gen.1

(Supreme Court of Illinois. Oct. 22, 1894.) RAILROAD COMPANIES-DUTY OF MAINTAINING STATIONS-MANDAMUS.

Where a railroad runs through two adjoining municipalities, one of which is practically a suburb of the other, and which are connected by street cars, it will not be compelled by mandamus to establish a station at the suburb, where the business of such suburb would

Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

not pay for the expense of maintaining such a station, and the inhabitants can travel in either direction by going to a station very near one edge of the limits of the suburb.

Appeal from circuit court, Madison county; B. R. Burroughs, Judge.

Petition for mandamus, brought by the people of the state of Illinois, on the relation of George Hunt, attorney general, against the Chicago & Alton Railroad Company, to compel the defendant to establish a passenger and freight station at the town of Upper Alton. The writ was granted. Defendant appeals. Reversed.

Wise & Davis, for appellant. Geo. Hunt, Atty. Gen., for appellee.

*

BAKER, J. This case was before us at a former term, and is reported as People v. Chicago & A. R. Co., 130 Ill. 175, 22 N. E. 857. The case was then submitted to us on a demurrer to the petition for a writ of mandamus. The substance of the prayer of the petition was that a writ of mandamus should be issued commanding the railroad company to establish a passenger and freight depot in the town of Upper Alton, upon its line of railway between the station of Godfrey and the station of Wann, and to stop its trains, both freight and passenger, or a sufficient number thereof to accommodate the public, and discharge passengers and freight thereat when requested. We there said: "The petition undertakes to show the public importance and necessity of the station asked for in two ways: First, by alleging the facts and circumstances which tend to prove it; and, secondly, by directly averring it. It cannot be doubted, we think, that the facts alleged make out a clear and strong case of public necessity. * * Then, as we have already said, the petition directly avers, and the demurrer admits, that the accommodation of the public living in and near said town requires, and long has required, the establishment of a passenger and freight depot on the line of its road within said town. Unless, then, there is some explanation for the course pursued by the defendant which the record does not give, we cannot escape the conviction that its conduct in the premises exhibits an entire want of good faith in its efforts to perform its public functions as a common carrier, and an unwarrantable disregard of the public interests and necessities. It cannot be admitted that the discretion vested in the defendant in the matter of establishing and maintaining its freight and passenger stations extends so far as to justify such manifest and admitted disregard of its duties to the public." And the judgment of the circuit court was therefore reversed, for the error in sustaining the demurrer to the petition, and the cause was remanded for further proceedings.

Upon the remandment of the case, there was answer and replication, and a trial of the issues before the court, without a jury.

The court found the issues for the petitioner, and overruled a motion for a new trial. It then rendered final judgment, awarding a writ of mandamus against the railroad company, commanding it to establish and maintain a station on the line of its road at Upper Alton, and to stop at said station daily a sufficient number of trains to accommodate the public, and to receive and discharge at said station such freight and passengers as shall be there offered, in like manner as at other stations on the line of its road, where like amount of freight and passengers was being received and discharged by it at the time of the filing in the court of the petition herein. The record was then again brought here by appeal, and various assignments of error made.

We have examined the entire testimony in the record itself, and find the facts of the case to be substantially these: The Chicago & Alton Railroad Company owns and operates a line of railroad running from East St. Louis to Chicago. Alton is a city, on the line of its railroad, that is quite a manufacturing point, and does a large business, and occupies the fourth place of importance in the freight and passenger traffic of the company. The company runs its passenger trains daily between St. Louis and Chicago, which pass through Alton; also an accommodation train between Alton and St. Louis, making five trains daily each way on the company's road between Alton and St. Louis. The Indianapolis & St. Louis, now the Cleveland, Cincinnati, Chicago & St. Louis Railroad Company (usually called the "Big Four"), runs into Alton. It also has an accommodation train running between Alton and St. Louis, and, with its regular trains and its accommodation train, has an equal number of trains as the Chicago & Alton Railroad between those points, making 10 trains daily on each road between Alton & St. Louis. Upper Alton is a village whose territorial limits adjoin those of Alton on the east. It is principally a residence town, being practically an adjunct to Alton. It has a population of about 1,700 inhabitants, including the students from abroad who attend Shurtleff College and the Wyman Institute, two educational establishments there. It has no manufactories, except a blacksmith shop and wagon factory, that uses no machinery, but makes some wagons; no coal or lumber yards, no hotel, no bank, and no large stores. It has some 12 or 15 business houses, that do, in the aggregate, a business of about $100,000 or $125,000 a year; and of that amount one-third is bought by the merchants from stores in Alton, the remainder mostly from St. Louis. Upper Alton is connected with Alton by a steam-motor line and a horse railroad. Both lines start at Upper Alton from the square in which most of the stores are located, and run to within a block of the Union Depot at Alton, from which depot all trains on both railroads at

Alton arrive and depart. The motor line occupies about 20 minutes, and the street-car line 30 minutes, making a trip between the places; and the distance between the points on each street railroad is about 24 miles. In the extreme eastern limits of the city of Alton both the Chicago & Alton and the Big Four Railroads have a station called "Stutz" or "Upper Alton," at which most of their trains stop. It is on the line of the horse railroad running between Alton and Upper Alton about 1 miles from the business part of Upper Alton, half a mile outside of its territorial limits, and it takes 15 minutes to go on the street railroad from its business center to Stutz station. The travel from Upper Alton is from 90 to 95 per cent. to St. Louis. This Stutz or Upper Alton station affords facilities to take or depart from any of the trains which leave this station daily for St. Louis, and return thereto. During the boating season on the Mississippi river (usually seven or eight months) a steamboat runs daily between Alton and St. Louis, leaving Alton at 7 o'clock in the morning, and returning at half past 5 in the evening. The trip on the boat being pleasant and cool, free from dust, and much cheaper than by rail, causes the boat to be largely patronized by the people of Alton and Upper Alton. Freight by the boat is so much cheaper than by rail that during the river season 75 per cent. of the merchandise that is bought in St. Louis for Upper Alton comes by way of the boat. East of the territorial limits of Upper Alton, and a quarter of a mile east of the "cut off," hereinafter mentioned, and about one mile from the business portion of the village, the Chicago, Burlington & Quincy Railroad Company has a depot for and called Upper Alton; but its passenger trains are very seldom patronized by the people of the village, because they do not run at convenient hours (the trains leaving the depot for St. Louis at 6 a. m. and 4:30 p. m., and the train arriving there at 9:30 p. m.), because they do not sell commutation tickets, and also because there is no street railroad to the depot. Consequently, passengers from Upper Alton prefer to take the street railroad to Stutz station in Alton, where they can have convenient trains, or take the motor line, and go to Alton, and take the boat. There are quite a number of residents in Upper Alton who are engaged in business in St. Louis, and who travel daily, both ways, between the village and St. Louis, and use commutation tickets.

The Chicago & Alton Railroad Company owns and operates a railroad called the "St. Louis, Jacksonville & Chicago Railroad," which runs from Godfrey, in Madison county, Ill., to Roodhouse, Ill. From there west the Chicago & Alton Railroad Company has leased lines extending to Kansas City, Mo. The line of the Chicago & Alton Railroad be tween St. Louis and Kansas City was about 60 miles longer than that of competing rail