Chicago Terminal Transfer R. R. Co. v. Kotoski.

the train, and it was near the time when the conductor had directed appellee to come back to the train that the train was backed over the trestle.

We do not wish to be understood as holding that if appellee was a trespasser when injured, any mere lack of ordinary care would impose liability upon appellant; but we are of opinion that the evidence in this case warrants the conclusion of more than lack of ordinary care, i. e., wanton negligence on the part of appellant. Aside from this knowledge of the condition, there is evidence, slight, it is true, that an official of appellant stood upon the rear platform of the train while it was backed onto the trestle. It is shown, and not contradicted, that a man in uniform stood upon the rear platform with other persons, and that he was shouting to warn the persons upon the trestle. It was in the power of appellant to show whether this uniformed person was one of its train crew or not. In the absence of such showing the evidence, although slight, goes to show that some one of the train crew-conductor or brakeman—was thus an observer of the peril to which appellee and the others were exposed, and it does not appear that he made any effort to have the train stopped before the injury. In this connection we are invited to consider the record in another appeal, here pending, in the suit of Agnes Gruss against appellant. Agnes Gruss is the young girl whom appellee was seeking to assist over the trestle when he was injured. The fact that the evidence in that case discloses that the person in uniform upon the rear platform was a brakeman of appellant, if it does so show, can not be considered by us in passing upon the sufficiency of the evidence in this record. But without considering such evidence, we are of opinion that the evidence here is enough to warrant the jury in concluding that appellant's agent had knowledge of the peril of appellee and the others, incurred by the backing of the train upon the trestle.

It can not be contended that the conduct of appellee in delaying his own escape from the danger in order to aid the girl, is per se to be imputed as constituting negligence.

VOL. CI 20

VOL. 101.] Chicago Terminal Transfer R. R. Co. v. Kotoski.

It was a question for the jury, and we regard their disposition of it as fully justified by the evidence. W. C. St. R. Co. v. Linderman, 187 Il. 463; Eckert v. L. I. R. R. Co., 43 N. Y. 502; approved in Gibney v. State, 137 N. Y. 1; Penn. Co. v. Langendorf, 48 Oh. St. 316; M. Steel Co. v. Marney, 88 Md. 482; Condiff v. K. C. F. S. & G. R. R. Co. 45 Kan. 256; Linnehan v. Sampson, 126 Mass. 506.

It is contended that the court erred in admitting testimony of a witness as to the number of people who preceded appellee over the trestle. We see no error in the ruling admitting this testimony. The fact that twenty-five persons had gone over the trestle before appellee and his companions started, was competent at least as bearing upon the question of ordinary care on the part of appellant in the event the jury found that appellee was not a trespasser, if not as well in relation to the care exercised by appellee for his own safety.

All other objections to rulings on evidence are in relation to evidence bearing upon the extent of the injury. As no claim is made in the briefs that the award is excessive, such errors, if any, are without prejudice.

The instruction tendered by counsel for appellant, informing the jury that appellee was a trespasser upon appellant's right of way when injured, was properly refused. It was a question of fact for the jury to determine as to whether he was a trespasser.

The only other instruction refused as to which complaint is made, was fully covered by other instructions given, and therefore the refusal was proper. The court was not required to repeat substantially the same instruction.

No other matters are presented for consideration except as above noted. The judgment is affirmed.

Counselman v. Sullivan.

Charles Counselman v. Jeremiah Sullivan.

1. PRACTICE-Where One of Two Defendants Appeals.-Where one of two defendants appeals from the judgment of a justice of the peace and the other does not, nor enter his appearance, and the process issued against him is returned not served, the statute provides that the cause shall, at the first term of the court, be continued.

Error to the Circuit Court of Cook County; the Hon. JOHN GIBBONS, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901. Reversed and remanded. Opinion filed March 18, 1902.

October 28, 1898, before a justice of the peace, there was rendered a judgment in favor of defendant in error and against plaintiff in error and one Harry B. Clifford jointly, for $200 and costs. November 15, 1898, plaintiff in error filed his appeal bond with the clerk of the Circuit Court, which was approved, and a supersedeas issued to the justice. A transcript of the justice's judgment and the appearance of defendant in error were duly filed with the circuit clerk, who on January 24, 1899, issued a summons for service on Harry B. Clifford, returnable to the February (1899) term of the court. This summons was returned by the sheriff, on February 20, 1899, "Not found." On February 20, 1899, (at the January term,) without any service on or appearance by, Clifford, the appeal was dismissed for want of prosecution. This dismissal is assigned for error.

C. STUART BEATTIE, attorney for plaintiff in error. THORNTON & CHANCELLOR, attorneys for defendant in

error.

MR. JUSTICE WATERMAN delivered the opinion of the court. Section 70 (180) of Chapter 79, Hurd's Edition, 1901, of the Revised Statutes, clearly provides that in such a condition as existed in this case the cause shall, at the first term of the court, be continued.

The statute is, in this regard, hardly open to construction; it has, however, been passed upon by the Supreme

Court in Stewart v. Peters, 33 Ill. 383, and Walter v. Bierman, 59 Ill. 186, and by the Appellate Court in Bourton v. Rathbone, 23 Ill. App. 654.

The judgment of the Circuit Court is reversed and the cause remanded.

Sarah C. Warren v. Frederick H. Warren.

1. ALIMONY-Modification of a Decree for, Addressed to the Judicial Discretion of the Court.-The application for the alteration of an original decree for alimony is addressed to the judicial discretion of the court, and ordinarily, in the absence of fraud in procuring such decree, the inquiry is directed to ascertain whether any sufficient cause has intervened since the entry of original decree, such as should, in the application of equitable principles, authorize a change in the allowance. 2. SAME-Power of Succeeding Chancellors to Modify a Decree for, upon Facts Existing at the Time of Its Entry.-It is not contemplated that the same or succeeding chancellors will, after the lapse of an indefinite time, have power to reverse, alter or modify a decree for alimony upon the facts existing at the time of its entry.

Decree vacating an order for alimony. Error to the Superior Court of Cook County; the Hon. ARTHUR H. CHETLAIN, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901. Reversed and remanded. Opinion filed March 18, 1902.

H. STUART DERBY, attorney for plaintiff in error; EDWARD C. FITCH, of counsel.

EDWARD H. MORRIS, attorney for defendant in error.

MR. PRESIDING JUSTICE FREEMAN delivered the opinion of the court.

This writ of error is prosecuted to reverse a decree of the Superior Court vacating so much of a decree entered in a divorce proceeding instituted by plaintiff in error, as required the payment to her of $40 a month alimony.

The decree granting plaintiff in error a divorce was entered November 24, 1897, by default. It is now claimed by defendant in error that in August, 1897, prior to the filing of the bill for divorce, he made a verbal contract with

Warren v. Warren.

his said wife wherein she agreed to accept from him in full of all claims for alimony the sum of $300 to be paid in twelve monthly installments of $25 each, with all solicitors' fees and costs, and certain household furniture; and it is alleged that plaintiff in error fraudulently withheld from the court at the hearing of the divorce suit this alleged agreement, and that by reason of such concealment the allowance of $40 per month alimony was granted. After the entry of the original decree defendant in error was informed of its terms, and shortly thereafter sent $25 to the wife with a written form of receipt for her signature, setting forth his alleged agreement to pay $300 in monthly installments of $25, and that such payment should be in full of all demands against him. This she refused to sign, and returned him a simple receipt for the amount paid. He thereupon wrote her claiming that the agreement was as he had stated, and that her "shyster lawyer ignored the terms of his statement to me," etc. Defendant in error continued to make payments of $25 a month until twelve such payments had been made, the last having been made November 1, 1898. He then ceased making any payments. March 8th following, plaintiff in error instituted attachment proceedings to compel payment of the balance due under the decree at the rate of $40 per month. Thereupon defendant in error paid the sum of $340 back payments and continued to pay $40 a month thereafter until the time, about six months later, when he filed the petition now under review. In that petition he prays that the alimony may be abated and that he be discharged from all further payment thereof. Upon the hearing, the petition was granted, and it was ordered that defendant in error be "released and forever discharged from the obligation of paying to said Sarah C. Warren any other or further sum as alimony."

Sec. 18, Chap. 40, R. S., provides that when a divorce shall be decreed the court may make such order touching alimony, among other things, as from the circumstances of the parties and the nature of the case shall be fit, reason