4. SAMB.

On the trial of a proceeding by a railroad corporation to condemn a right of way through a farm, involving damage to the farm by the diversion of a stream claimed by defendant to have been useful for stock-watering purposes, evidence for plaintiff' that the stream had, from pollution, become worthless for such purposes, is competent as showing the nature and condition of the stream, though the pollution was the wrongful act of a third person. And, in such case, it is for the jury to say how long the pollution will continue.

5. SAME-COMPENSATION-REMOTE DAMAGES.

An instruction to a jury in the following form: "In assessing the damages to the market value of the property not taken, you should not take into consideration anything as an element of damages which is remote, or imaginary, or uncertain, or speculative, even though mentioned or testified about by witnesses; but the only elements which you should take into consideration as tending to reduce the market value are those which are appreciable and substantial, and which will actually lessen the market value of said property,"-does not submit to the jury the question of law what damages are remote, imaginary, uncertain, or speculative.

6. SAME-COMPENSATION-Knowledge DERIVED FROM VIEW OF PREMISES.

The jury, in a proceeding to condemn land, were to assess both the value of land taken and the damage to land not taken, and lawfully viewed the premises in person, and the result of such view was competent evidence for the jury to consider. Held, that an instruction that, if they believed from all the evidence that they had from personal examination of the premises arrived at a more accurate judgment and determination of the value and damage than was shown by the evidence taken in open court, they might rightfully fix the value and damage at the amount so approved by their judgment so formed from personal examination of the premises, even though their finding may differ from the amount testified to, and from the weight of the testimony, does not give undue prominence to the evidence derived from such personal examination.

7. SAME-COMPENSATION-CREDIBILITY OF WITNESS.

An instruction to a jury that, if they believe from the entire testimony, and from inspection of the premises, that any witness has exaggerated the value of the land taken, or the damages to the land not taken, on account of his interest in the suit, or prejudice, or want of knowledge or experience or truthfulness, then they have the right to disregard the evidence of such witness in so far as it is unjustly increased either as to the value of the land taken or the damages to the property not taken. was given in a proceeding to assess the value of land taken for a railroad's right of way, and the damage to property not taken. It was lawful for the jury to view the premises in person, and they did so, and the result of the view was competent evidence for them to consider. Held, that the instruction was not objectionable as telling the jury that they might arbitrarily disregard the testimony of unimpeached witnesses.

Appeal from Knox county court; P. H. SANFORD, Judge.

Action by railroad corporation to condemn a right of way. Section 9 of the Illinois eminent domain act is as follows: “Said jury shall, at the request of either party, go upon the land sought to be taken or damaged, in person, and examine the same, and, after hearing the proof offered, make their report in writing, and the same shall be subject to amendment by the jury, under the direction of the court or the judge, as the case may be, so as to clearly set forth and show the compensation ascertained to each person thereto entitled, and the said verdict shall thereupon be recorded: provided, that no benefits or advantages which may accrue to lands or property affected shall be set off against, or deducted from, such compensation, in any case."

Section 52 of the Illinois practice act (2 Starr & C. St. 1814) is as follows: "Hereafter no judge shall instruct the petit jury in any case, civil or criminal, unless such instructions are reduced to writing."

The Illinois clerks of courts act, § 2, (1 Starr & C. St. 551,) is as follows: "The county clerks of the several counties shall be clerks of the county courts of their respective counties."

Geo. W. Thompson and F. A. Willoughby, for appellant. Williams, Lawrence & Bancroft, for appellee.

SHELDON, C. J. This was a petition filed by the appellee, the Chicago, Sante Fe & California Railway Company, in the county court of Knox county,

on May 31, 1887, for the condemnation of a strip of land through the farm of appellant for appellee's right of way. Appellant's farm consists of 132 acres, situated about three miles west of Galesburg, on adjoining lands in sections 19 and 20. The right of way takes 10 56-100 acres of land, and cuts the farm in such shape that a triangle of over 12 acres is left on the north side of the right of way on section 19, and a triangle of 9 acres north of the right of way on section 20. The petition proposed to change the course of a stream called Cedar Fork, which, if not diverted, would flow in its natural state on each side of the land taken for right of way, but as proposed to be changed would be diverted entirely from the 40 acres south of the right of way on section 19. The jury found appellant was entitled to $750 as compensation for land taken; to $975 as damages to land not taken, not including damages for change of creek; and to $1 for damage for diversion of the creek. There was judgment on the verdict, and appellant brings the case to this court, assigning as error the rulings of the county court.

It is assigned as error that the court should have allowed the challenge to the array of the jurors. There had been a prior condemnation case in April previous, at which time the county clerk followed the statute in selecting the jury at the time of issuing the summons in the case, writing the names of each of 64 disinterested freeholders on 64 slips of paper, and selecting from these 64 the names of 12 jurors. The county clerk, in the present case, took the residue of the 64 names remaining after drawing the jury in the prior case a month before, examined them, rejecting any appearing to be interested, and writing sufficient new names to fill up the required number, 64, and then drawing from these the jury. The requirement of the statute is: "In cases fixed for hearing of petition in vacation, it shall be the duty of the clerk of the court in whose office the petition is filed, at the time of issuing summons or making publication, to write the names of 64 disinterested freeholders of the county on 64 slips of paper, and, in presence of two disinterested freeholders, cause to be selected from said 64 names twelve of said persons to serve as jurors, such selection to be made by lot, and without choice or discrimination." Eminent Domain Act, § 6 The sole reason for the

challenge is that in the present case the clerk did not "at the time of issuing summons write the names," etc., of the 52 disinterested freeholders remaining from drawing the jury in the previous case. The names were already written, and to rewrite them would have been a mere idle act. The challenge was groundless.

The next assigned error is that the court admitted improper evidence on behalf of the petitioner. Witnesses on behalf of the defendant had given their opinions as to the amount of the depreciation of the market value of appellant's farm, which would be caused by the railroad running across it in the manner proposed. Evidence was admitted on the part of the petitioner as to how the selling value of other farms in the county cut by railroads had actually been affected thereby, as shown by cases of sale which had taken place. This is claimed to have been improper. While we regard this evidence as not properly admissible, we think, in view of all the evidence before the jury, it could not, in this instance, have done any harm, and we cannot hold its admission to be sufficient ground for reversal of the judgment.

Objection is taken to the admission of evidence tending to prove that Cedar Fork, the stream to be diverted, was the receptacle of all the sewage of the city of Galesburg, and by such use had become so befouled as to be practically worthless for stock water. This was competent evidence, as showing the nature and condition of the stream, and bearing upon the question of the damages which were claimed for the diversion of the stream. It intended to show appellant's own estimate of its value and need to him, in his suffering such pollution of the stream. It is said there was no right thus to pollute the stream. The jury was fully instructed in this respect, and it was for their

consideration how long might be the continuance of the existing condition of the stream. The land from which the stream was to be diverted was watered by another stream.

The giving of instructions for the petitioner is assigned as error. The jury, in accordance with section 9 of the eminent domain act, went upon the land and examined the same. The second instruction given for the petitioner, and objected to, informs the jury that the result of the personal view of the preinises was evidence properly to be taken into consideration in making up the verdict. That if they believed from the whole evidence that they had, from personal examination of the premises, arrived at a more accurate judgment and determination as to the value of the premises sought to be taken, and of the amount of damage, than is shown by evidence in open court, then, in that case, they might upon the evidence rightfully fix the value of land taken, and the amount of damage, at the amount so approved by their judgment so formed from personal examination of the premises as a jury, even though it might differ from the amount testified to, and from the weight of testimony given by witnesses in open court. This accords with what this court has heretofore said upon this subject. Railroad Co. v. Hopkins, 90 Ill. 323. Green v. City of Chicago, 97 Ill. 372; McReynolds v. Railroad Co., 106 III. 156; Mitchell v. Railroad Co., 85 Ill. 566. In the case first cited it was said the result of the jury's own personal examination, where they go upon and view the land, may have been such as to have justified the assessment made, even if it was clear the preponderance of evidence preserved in the record was against the amount of the assessment. We do not perceive that the instruction is open to the criticism made upon it, that it gives undue prominence to that portion of the evidence derived from personal inspection.

It is insisted the court erred in giving petitioner's third instruction as follows: "(3) In assessing the value of the land actually taken, and the damages to the land not taken, you should not assess the same on the basis of what the owner would take for the same, or any part thereof, or what you would take, and let the railroad go across the lands, if you were the owner of them. These are improper to be taken into consideration, either in fixing the value of the land taken, or in assessing the damages to the land not taken; but you should at all times keep in mind that the actual, fair cash market value of the lands taken, and the decrease, if any, in the actual, fair cash market value of the lands and property not taken, by reason of the construction and operation of the railroad, are the proper measure of damages and compensation which you are to ascertain in this case." It is admitted the first clause of the instruction is correct, but the objection taken to the instruction is to that portion of the second clause which says the matters in the first clause were improper to be taken into consideration in fixing the damages. If the damages should not be assessed upon the basis of those matters, as is conceded, then we do not see that it was improper to say they should not be taken into consideration in assessing the damages. The proper measure of damages and compensation was given in the subsequent part of the instruction, (Kailway Co. v. Walsh, 106 Ill. 255; Railroad Co. v. Jacobs, 110 Ill. 416; Dupuis v. Railway Co., 115 III. 99, 3 N. E. Rep. 720;) and to the instruction as a whole we perceive no substantial objection.

In the fifth and ninth instructions, which are objected to, we find no substantial error. They are as follows: "(5) In assessing the damages to the market value of the property not taken you should not take into consideration anything as an element of damages which is remote, or imaginary, or uncertain, or speculative, even though mentioned or testified about by witnesses; but the only elements which you should take into consideration as tending to reduce the market value are those which are appreciable and substantial, and which will actually lessen the market value of said property." "(9) You are further instructed that, if you believe from the entire testimony, and from

your inspection of the premises, that any witness has magnified or exaggerated the value of the land taken, or the damages to the land not taken, on account of his interest in the suit, or his prejudice, or want of knowledge or experience or truthfulness, then you have the right, and it is your duty, to disregard the evidence of such witness, in so far as the same is unjustly magnified or unjustly increased, either as to the value of the land taken or the damages to the property of the defendant not taken."

The objection taken to the fifth instruction is that it submits to the consideration of the jury what damages are "remote, imaginary, uncertain, or speculative," whereas that is a matter of law upon which the court should pass. The court did indicate its opinion in that respect in the last clause of the instruction, in naming to the jury what were the only elements of damage they should consider.

The ninth instruction does not go to the length, as counsel would seem to intimate, of telling the jury that they might arbitrarily disregard the testimony of unimpeached witnesses. It was but to the effect that the jury were not obliged to accept a witness' statement as sworn to, but that if, from the entire testimony, and their inspection of the premises, they believed any witness had exaggerated the value of the land, or the damages, then it was their right and duty to disregard the evidence of such witness in so far as it was thus unjustly exaggerated. We think this was well enough said.

When the jury returned into the court with a verdict, the finding in it was "blank dollars," damages for division of Cedar Fork creek. The counsel for petitioner stated to the court they desired the jury should find some sum, as one cent or one dollar, as damages for the diversion of the creek, and requested that the jury might be allowed to amend their verdict in that regard. Thereupon the judge of said court stated to the jury that they should find at least a nominal sum for the diversion of said creek, but it was for them to say, under all the evidence, what their finding should be in that regard, and that they might retire and consider further of their verdict; and the jury did so, and returned their verdict with the word "blank" stricken out and "one" written in instead. Exception is taken to this action of the court, as instructing the jury orally, contrary to the statute (Practice Act, § 52) in that regard. The ninth section of the eminent domain act provides that the jury, having examined the premises and heard the proof, shall make their report in writing, and the same shall be subject to amendment by the jury, under the direction of the court or the judge, as the case may be, so as to clearly set forth and show the compensation ascertained to each person entitled thereto. The action of the court was justified under this provision of the eminent domain

act.

The judgment will be affirmed.

CHICAGO & A. R. Co. v. PILLSBURY.

(Supreme Court of Illinois. November 11, 1887.)

1. CARRIERS-DUTIES TO PASSENGERS-PROTECTION FROM STRIKERS. Defendant, a railroad company, stopped at a place not a usual stopping place to take aboard laborers who had taken the place of strikers. The police guarded the laborers until they entered the train, and they went into the smoking car. When the train stopped at a railroad crossing, a mile and a half beyond, it was boarded by a mob, who attacked the laborers, and shot the plaintiff, a passenger. The court instructed the jury that it was the duty of the defendant "to exercise the utmost care, skill, and vigilance to carry plaintiff safely, and to protect him against any and all danger, from whatever source arising, so far as the same could, by the exercise of such a degree of care and vigilance, have been reasonably foreseen and prevented." Held that, as the point at which the train took the laborers on board was not a regular station, and as it must be presumed from the verdict that defend

ant knew of the dangerous mob, under the circumstances of this case the instruction was properly given. Reversing 8 N. E. Rep. 803. SHELDON, C. J., and MAGRUDER, J., dissent.

2. TRIAL-Argument of COUNSEL.

It was assigned for error that the counsel for plaintiff stated facts to the prejudice of the defendant not appearing in evidence. Held, that the conduct of an oral argument before the jury is in the discretion of the trial court, and will not be interfered with unless substantial injustice is done.

3. SAME-INStructions-SUBSTITUTED CHARGE.

The court refused certain instructions asked for by defendant, but gave them substantially in others, though in different language. Held, that the refusal was not

error.

Appeal from appellate court, Second district.

On petition for rehearing. Reversing former opinion in 8 N. E. Rep. 803.

SCOTT, J. Under the facts as they must have been found from the evidence by the trial and appellate courts, it is a question of law what duty defendant owed to plaintiff and other passengers on the train at the time the injury was inflicted upon plaintiff, and whether any liability rested upon defendant.

Upon these questions the trial court instructed the jury it was the duty of defendant, as a common carrier of passengers, "to exercise the utmost care, skill, and vigilance to carry plaintiff safely, and to protect him against any and all danger from whatever source arising, so far as the same could, by the exercise of such a degree of care and vigilance, have been reasonably foreseen and prevented." It is said this instruction does not announce the law with entire accuracy; that it required a higher degree of care to be observed by defendant for the safe carrying of a passenger than the law imposes, and in that respect was misleading. It is freely conceded there is a marked distinction between the liability of a common carrier as to freights and passengers. As to freights, the carrier is an insurer, and is obligated to carry and deliver safely, at whatever hazard, and from that obligation it can only be relieved by "the act of God" or the public enemy. But the carrier is not an insurer of the absolute safety of the passenger to be carried. Its liability in that respect is limited by care and diligence. What degree of care the common carrier must observe for the safety of a passenger on its train to exonerate it from liability for injury is a question of law. The rule of law is quite well understood that, as to the selection of suitable machinery and cars, the fitness of the road, both as to manner of construction and materials used, and in the use of all appliances adapted for the government or moving of trains, and as to the selection and retention of competent and faithful servants, the carrier of passengers is obligated to use the highest reasonable and practicable skill, care, and diligence. This principle of law is not called in question, but the argument is made that, in guarding the passengers from dangers and perils not incident to ordinary railway travel, the carrier is only to be held to the use of ordinary and reasonable care and diligence. The distinction taken is not without support, both in reason and authority. So far as the machinery and cars furnished for the carriage of passengers, the fitness of the road-bed, and the competency and faithfulness of the servants employed, and in the use of the best known mechanical appliances to insure safety are concerned, the passenger must rely

I A carrier is bound to exercise the highest degree of care and skill to preserve the safety of the passengers and to prevent accident. Moore v. Railroad Co., (Iowa,) 30 N. W. Rep. 51, and note. It is bound to see that no harm comes to a passenger from a fellow-passenger whose conduct and condition are such as to render his presence dangerous. King v. Railway Co., 22 Fed. Rep. 413; Railroad Co. v. Weber, (Kan.) 6 Pac. Rep. 877. But it is held that a recovery cannot be had for injuries received by a passenger in being thrown from a platform car by other passengers, in the absence of circumstances from which the defendant company could have reasonably anticipated such ar. assault. Felton v. Railway Co., (Iowa,) 29 N. W. Rep. 618.