chances of driving across the tracks before the engine would reach the crossing, and voluntarily took the risk of reaching and clearing the crossing before the engine could strike him, and that for this reason the court, in passing upon the motion entered by the appellant company for a peremptory verdict in its favor, should have held as matter of law the appellee was guilty of contributory negligence, and should have directed a verdict for the company. The engine which struck the appellee had been engaged for 15 or 20 minutes in switching cars back and forth across the public crossing, and during that period of time had obstructed the crossing. The appellee was waiting to cross, and the evidence tended to show that the engine was put in rapid motion toward the south, with every appearance that the work of switching had been finished there, and that the engine was going away from the locality of the crossing to work elsewhere, and that he believed he could cross with entire safety. He therefore attempted to pass along the highway over the railway crossing. His view of the engine was obstructed by a freight car. Without any warning whatever the motion of the engine was suddenly reversed, and it was moved rapidly backward over the crossing, and thus ran upon and injured the appellee. The trial court correctly regarded it as a question of fact, under the proof, whether the appellee exercised reasonable care for his own safety in attempting to cross the tracks. The question was not, as counsel for appellant argue, whether the appellee was free from even the slightest negligence, but whether he acted with that degree of care which a reasonably prudent and cautious person would have exercised under like conditions. Railroad Co. v. Hutchinson, 120 Ill. 587, 11 N. E. 855. Slight negligence is not incompatible with due and ordinary care, and if one has proceeded with ordinary care, though slightly negligent, he has observed the degree of care required by law. Railway Co. v. Hessions, 150 Ill. 546, 37 N. E. 905; Railway Co. v. Dinsmore, 162 Ill. 658, 44 N. E. 887.

Complaint is made that the appellee, in order to enhance his damages, was permitted to prove that his wife rendered services to him as a nurse and that he agreed to pay her therefor. In this same connection we may consider the further complaint that the court erred in so framing an instruction given to the jury on the motion of the court as to warrant the inclusion of the value of the services of the wife in assessing the damages to be awarded to the appellee. The testimony having reference to the services of the wife in nursing the appellee was given by the appellee. It was, in substance, that he required care and nursing; that his wife and son and others, his neighbors, waited upon and nursed him; that he agreed to pay his nurses, including his wife, for their labor;

that he was waited upon and nursed for 13 weeks; and that the total expense for such services was $10 per week. Counsel for appellant did not object to this testimony, ask that it be excluded or that the jury be instructed to disregard it, or in any way ask the court to rule as to its admissibility; nor did the court make any ruling thereon. Counsel for appellant treated the testimony as admissible, and proceeded to cross-examine with reference thereto, and in the course of such cross-examination brought out the fact that nothing had been said between the husband and wife as to how much should be paid to the wife. The court did not make, or was not asked to make, any ruling as to the admissibility of the testimony. The litigants proceeded upon the theory it was competent and proper proof. There is, therefore, nothing in the record on which to base an assignment that error intervened in the admission of the evidence. Had the objection been raised in the trial court, the testimony might have been withdrawn, or the jury instructed to disregard it, and the record freed from error. The appellant company could not be permitted to omit all objection, act upon the testimony as legal and proper in the trial court, take the chances of a favorable verdict, and, that failing, complain in this court for the first time that an error thereby crept into the record.

In the instruction framed by the court, upon the motion of the court, for the purpose of advising the jury as to the elements of damages in the event the verdict should be for the plaintiff, the reasonable expenses, if any are proven, "in repairing the buggy and harness, in nursing, and physician's services," are mentioned as proper for consideration. It is urged a general objection preserved to this instruction calls upon this court to reverse the judgment on the ground the instruction, in view of the evidence, authorized the jury to include the value of the services rendered by the wife in the damages assessed to be paid by the appellant company. The parties, in producing the testimony for the consideration of the jury, proceeded upon the theory the value of the services of the wife in nursing her husband, if rendered upon a contract that she should be paid therefor, was, in legal contemplation, proper to be considered by the jury in arriving at the damages sustained by the husband. In the instruction under review the court merely accepted the view entertained and acted upon by the parties, and instructed accordingly. The appellant company did not seek to have the jury otherwise instructed on the point, and cannot now be heard to complain that the jury were permitted to decide the case on evidence which it voluntarily allowed to go to the jury as proper and competent to be heard and considered.

The objection that a number of witnesses were improperly allowed to give in evidence

opinions as to the injury received by appellee and its effect upon his health is not well taken. We have examined all the testimony pointed out by counsel to which the objection applies. It consists of statements of witnesses that the appellee was "suffering," was "nervous," was "in misery," "weak," "feeble," "in distress," "sore," "in pain," "nauseated," etc. This testimony was competent, within the rule laid down in Railway Co. v. Fishman, 169 Ill. 196, 48 N. E. 447. We there said (page 198, 169 Ill., and page 448, 48 N. E.): "Where a previous habit or study is essential to the formation of an opinion sought to be put in evidence, only such persons are competent to express an opinion as have, by experience, special learning, or training, gained a knowledge of the subject-matter upon which an opinion is to be given, superior to that of an ordinary person. Witnesses not experts are, however, allowed to express opinions when the subject-matter to which the testimony relates is such in its nature it cannot be reproduced and described to the jury precisely as it appeared at the time. Opinions may be given by nonexpert witnesses as to the state of health, hearing, or eyesight of another, or the ability of another to work, or walk, or use his arms or legs naturally, or whether such other is apparently suffering pain, or is unconscious, in possession of his or her mental faculties, intoxicated, excited, calm," etc.

Instruction No. 25, asked by the appellant company, but refused, was, in substance, that if the appellee attempted to cross the track of the railroad under certain circumstances, specified in the instruction, "then, under the law, the plaintiff assumed the risks, perils, and dangers incident to so doing," and could not recover because of such assumption of the risk and peril from which he received the injury. The principle that a servant of sufficient age and experience, who voluntarily contracts to enter the employ of a master, assumes the risks ordinarily and usually incident to the employment, and will be supposed to have contracted with reference to such risks, has no reference to the rights and duties of the parties to this cause. The appellee bore no contractual relation to the appellant company. He was charged with the duty of exercising ordinary care for his own safety, and, if he conducted himself with that degree of prudence and caution, he was entitled to recover, if injured by the negligence of the appellant company. If he failed to so order his actions, he should have been denied a right to recover, not on any theory that he had assumed the dangers and risks from which he was injured, but because he had failed to act with reasonable care.

There appears no reason we should interfere with the judgment. It is affirmed. Judgment affirmed.

(199 Ill. 34)

CHICAGO & E. I. R. CO. v. BEAVER. (Supreme Court of Illinois. Oct. 25, 1902.) RAILROAD CROSSING ACCIDENT CONTRIBUTORY NEGLIGENCE- EVIDENCE - VILLAGE ORDINANCES-WRONGFUL DEATH-DAMAGES

-INSTRUCTIONS.

1. Evidence, in action for death of one killed by his team being struck by an extra train at a railroad crossing, held sufficient to go to the jury on the question of his having used ordinary care for his own safety.

2. On the question of deceased, killed by a train at a railroad crossing, having used ordinary care for his own safety, evidence of the presence of willows near the track, on or near the right of way, obstructing the view, is admissible, though their presence was not charged as constituting negligence of the railroad com

pany.

3. Under 1 Starr & C. Ann. St. 1896, p. 718, providing that all ordinances may be proved by the certificate of the clerk, aud, when printed in pamphlet and purporting to be published by authority of the board of trustees, the pamphlet shall be received as evidence, the certificate of the village clerk, printed on a pamphlet of printed ordinances, certifying that it was published by authority of the board of trustees, sufficiently proves it was so published.

4. In an action for wrongful death of an unmarried man, who contributed to the support of his parents and their family, consisting of his brothers, sisters, and two nieces, an instruction is not erroneous because advising the jury that, in assessing damages, they are not limited to consideration of deceased's ability to earn wages during his minority, but may consider the reasonable expectation of benefits from continuation of his life, so far as it appears from the evidence.

Appeal from appellate court, Third district.

Action by Mattie M. Beaver, administratrix, against the Chicago & Eastern Illinois Railroad Company. From a judgment of the appellate court (96 Ill. App. 558) affirming a judgment for plaintiff, defendant appeals. Affirmed.

H. M. Steely and W. H. Lyford, for appellant. C. H. Beckwith and Geo. T. Buckinghan, for appellee.

BOGGS, J. The appellee administratrix, in an action on the case under the statute, on a trial before the court and jury in the circuit court of Vermilion county, recovered a judgment for $2,000 as for damages occasioned to the next of kin of her intestate by reason of his death, which, as she alleged, was occasioned through the negligent acts of the servants of the appellant company. This is an appeal from a judgment of the appellate court for the Third district affirming that of the circuit court.

We do not think the court erred in refusing to direct a peremptory verdict in favor of the appellant company. The ground of the motion for such a verdict was that there was a total lack of evidence to establish that the deceased exercised ordinary care for his own safety on the occasion in question. Walter G. Beaver, appellee's intestate, while riding in a buggy drawn by one horse, a short time after midnight on the morning of the 23d day of July,

1899, attempted to cross the track of the appellant's railroad in one of the streets in the outskirts of the village of Grape Creek, in Vermilion county, when he was run upon and killed by a work train operated by employés of the appellant company. The engineer in charge of the locomotive drawing the train saw the horse, which the deceased was driving, approaching the track, when its head was not more than four feet from the rails, and the fireman of the locomotive saw the horse after it had stepped upon the track. Neither of them saw the deceased, nor, so far as the record disclosed, did any one see the deceased at the time in question. It appeared in the proof that the deceased was a young man of about the age of 19 years, in good health, and in full possession of all of his mental faculties. His occupation was that of a coal miner. He lived with his father and mother, was industrious, and contributed out of his wages to the assistance of his parents. He was going to his home when he was killed. He was a member of a temperance society. A witness was produced who saw him near the hall of the Good Templars' Lodge, in South Danville, about 11 o'clock of the night he was killed. Another witness saw him on the same night at a schoolhouse about one-fourth of a mile from the crossing where he was killed. The testimony of these witnesses tended to show he was in a normal condition. He had for a number of years lived in the vicinity of the crossing, was familiar with the surroundings, and knew when trains were due to pass there. The train which struck him was an extra work train, and there was no regular train due to pass the crossing at the time he was killed. There was evidence tending to show that the whistle was not blown or the bell of the locomotive sounded within one-half mile of the crossing, and that the view of the approaching train was obstructed by a barn, by tall weeds and willows, and by a sycamore tree which stood near the track.

It was necessary, to a right of recovery, it should be made to appear the deceased was in the exercise of due care and caution for his own safety; but it is not indispensable it should be established by direct proof. It may be shown by circumstantial evidence, or, as has been sometimes said, it may be inferred by the jury from circumstances appearing in the proof. Railroad Co. v. Nowicki, 148 Ill. 29, 35 N. E. 358, and cases there cited; Railroad Co. v. Kelly, 182 Ill. 267, 54 N. E. 979; Dallemand v. Saalfeldt, 175 Ill. 310, 51 N. E. 645, 48 L. R. A. 753, 67 Am. St. Rep. 214. The natural instinct prompting to the preservation of life and the avoidance of injury, and consequent suffering and pain, may also enter into the consideration of the jury in determining the question. Railroad Co. v. Nowicki, supra; Railroad Co. v. Kelly, supra. We cannot say that the facts and circumstances which we have referred to, bearing upon the question whether the deceased was 65 N.E.-10

in the exercise of ordinary care, were not fairly and reasonably sufficient to warrant the jury in inferring that deceased conducted himself with ordinary and reasonable prudence. That willows were growing along or near the track of the railway was proper to be proven as a circumstance bearing upon the question of the exercise of due care on the part of the deceased. It was not necessary, to the introduction of such proof for this purpose, the existence of the willows should have been charged in the declaration as constituting negligence on the part of the company. It was unimportant, so far as the care and prudence of the deceased was concerned, whether the willows or other obstruction to the view of the train were on the right of way or not. If the view of the approaching train was obstructed by any object, it was proper the jury should have knowledge of it, and should consider it, in connection with all other facts bearing upon the question of the exercise of due care by the deceased.

The certificate of the clerk of the vilage of Grape Creek, printed on a pamphlet of printed ordinances of the village, certifying such pamphlet was published by the authority of the president and board of trustees of the village, sufficiently proved that such pamphlet was published "by the authority of the board of trustees" to entitle the pamphlet to be received as evidence of the passage and legal publication of the ordinances of the village, within the provisions of paragraph 66 of chapter 24, entitled "Cities," etc. 1 Starr & C. Ann. St. 1896, p. 718.

The objection preferred to a number of instructions given in behalf of the appellee, that it was error, in view of the evidence, to submit to the jury, as did the instructions, the question whether the deceased exercised due care, has been answered by what has been said with reference to the action of the court in denying the motion of the appellant company for a peremptory verdict.

Instruction No. 9, given at the instance of the appellee, did not lay down an erroneous rule for the assessment of damages. The next of kin were the parents, brothers and sisters, and two nieces (who lived with his parents) of the deceased. He was an unmarried man, and earned $40 to $50 per month. He contributed to the support of his parents and their family. These relatives might reasonably expect to derive pecuniary benefit from the continued life of the deceased, and the instruction did no more than to advise the jury that, in assessing damages, they were not limited to the consideration of the ability of the deceased to earn wages during his minority, but that they might take into consideration such reasonable expectation of benefits from the continuation of the life of the deceased, so far as the same should appear from the evidence in the case. The instruction does not depart from the rule laid down

by this court in Railway Co. v. Wangelin, 152 Ill. 138, 38 N. E. 760, for measuring damages in actions of this character.

We think the appellant company has no just ground to complain of the action of the court in refusing the only one of its instructions which was refused. The appellant company asked, and the court gave, 27 instructions in its behalf. The one refused was a substantial duplicate of instructions Nos. 5 and 19, which were given. The judgment of the appellate court must be, and is, affirmed. Judgment affirmed.

(199 III. 167)

DONALDSON v. DUNCAN. (Supreme Court of Illinois. Oct. 25, 1902.)

PARTITION-DIVISIONS-SALE-EVIDENCECOMMISSIONERS-REMOVAL-GROUNDS.

1. Hurd's Rev. St. 1899, c. 106, p. 1255, § 5, provides for partition, and section 16 requires the appointment of commissioners to allot the shares. Held, that the fact that defendant in partition was not consulted as to the selection of the commissioners, aud that the court requested counsel for complainant to name them, was no ground for their removal, though the statute provides that the commissioners shall be at all times subject to the direction of the court.

2. A statement in a motion to remove com

missioners in partition that they were not residents of the city which the land adjoined, and were not "supposed to have" an adequate knowledge of land values in the neighborhood, was not sufficient cause for removing the commissioners.

3. Hurd's Rev. St. 1899, c. 106, p. 1255, § 18, relative to partition, provides that, if a division cannot be made without manifest prejudice, a sale shall be had, and that in allotting the shares quality and quantity shall be relatively considered. On partition of 115 acres, the complainant owned one-fourth interest, and defendant the remainder. Some witnesses thought the land chiefly valuable for manufac turing purposes, and the part allotted to complainant was over one-fourth of the railroad frontage. Some witnesses thought the land principally valuable for farm purposes. high and low land, and plaintiff's allotment was hardly a sixth of the whole, but both allotments contained high and low land. Held, that it was error to refuse to confirm the report, and to confirm a subsequent one to the effect that an equitable division could not be made.

It was

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

Fartition by Elizabeth L. Donaldson against James Duncan. From the decree, complainant appeals. Reversed.

This is an appeal by Elizabeth L. Donaldson from the circuit court of Madison county, to reverse a decree there rendered in a partition proceeding by her against James Duncan to divide a tract of land containing 115 acres, adjoining the city of Alton, in which she owned a one-fourth interest; defendant being the owner of the remaining three-fourths. The defendant was served with summons, but, failing to file an answer, a decree for partition was entered against him by default. Three commissioners were appointed to make partition, and they divided the land by set

ting off to the complainant in severalty 19.93 acres, and to the defendant the remainder of the lands. Upon presenting their report to the court, but before it had been approved, the defendant, by his counsel, filed a motion asking that the decree of partition bę modified so as to appoint two other commissioners in place of two of the three first appointed. The reasons given for the motion were set out in an affidavit, and were, in substance, that neither the defendant nor his counsel was consulted when the first commissioners were appointed; that two of the commissioners were not residents of Alton, and "not supposed to have that acquaintance with land values in the neighborhood of said premises as those living near by." Complainant filed an answer to the motion to remove the commissioners, in which it was alleged that, before the decree of default was taken, the defendant, by his counsel, stated: "We have concluded not to file an answer, and will not appear. Go ahead and take your decree;" that, when the decree was actually taken, defendant's counsel was notified; that counsel for complainant, at the request of the court, suggested the names of the three commissioners appointed, and that it was not known to com

plainant's solicitor until after the division

had been made that counsel for defendant desired to suggest the names of any of the commissioners; that the defendant was on the premises at the same time the commissioners were viewing them, and made no objection until their report was filed. This answer was supported by affidavit. The court removed the two commissioners to which objection had been made. Two other commissioners were then appointed. The commissioners last appointed reported that the premises were not susceptible of division or partition without manifest prejudice to the parties interested, and fixed the value of the land at $13,000. Complainant filed a number of exceptions to this report, and filed a petition asking that the premises be platted, and also, in case of sale, that the court appoint a disinterested person as a special commissioner to make said sale; alleging that the master in chancery was disqualified therefor, for the reason that he is a member of the firm of Travous, Warnock & Burroughs, solicitors for the defendant. No answer was filed by the defendant to this petition, but the court heard the testimony of a number of witnesses, and ordered a sale of the premises in conformity with the report and recommendation of the commissioners. From that decree the complainant appeals.

W. R. Donaldson, Jr., and E. C. Springer, for appellant. C. N. Travous and Geo. D. Burroughs, for appellee.

WILKIN, J. (after stating the facts). Appellant insists first that the court erred in

failing to confirm the report of the commissioners making partition, and in removing two of those commissioners and appointing others. The statute (Hurd's Rev. St. 1899, c. 106, p. 1255) provides that any person interested in lands as a joint tenant, tenant in common, etc., may compel a partition thereof by bill or petition in chancery; that the petition shall pray for "the division and partition of the premises according to the respective rights of the parties interested therein, or that if a division and partition of the same cannot be made without manifest prejudice to the owners, a sale thereof shall be made, and the proceeds divided according to the respective rights of the parties."

Section

The

5. Section 16 provides: "The court, when it shall order a partition of any premises to be made, under the provisions of this act, shall appoint three commissioners, not connected with any of the parties, either by consanguinity or affinity, and entirely disinterested, to make partition of the premises." The commissioners were so appointed. They took the required oath, went upon the premises, and made partition in conformity with sections 17 and 18 of the same statute. latter section is as follows: "The commissioners shall go upon the premises, and if the same are susceptible of division they shall make partition thereof, allotting the several shares to the respective parties, quality and quantity relatively considered, according to their respective rights and interests as adjudged by the court, designating the respective shares by metes and bounds, or other proper description, and they may employ a surveyor with necessary assistants to aid therein; and if the premises are not susceptible of division without manifest prejudice to the parties in interest, they shall value each piece or parcel separately." It thus appears that the primary duty of the commissioners is to make partition, and that the land is only to be sold when partition cannot be made without manifest prejudice to the parties in interest. The commissioners first appointed divided the lands, and made a report of their partition to the court. The motion which was then made to remove two of the commissioners and appoint others in their stead was not made upon the ground that they were not qualified, under the provisions of the statute, to make partition, or that they were guilty of any improper conduct, or that they acted unfairly or arbitrarily in the discharge of their duties; nor was it contended that the division made by them was manifestly to the prejudice of the parties in interest. Whether or not counsel for defendant were consulted in the selection of the commissioners was not of controlling importance. They were appointed by the court. It may be conceded that the court requested counsel for complainant to name the commissioners, but the appointment was no less the act of the court. The

statement made in the motion that the two commissioners objected to were not residents of the city of Alton, and were not "supposed to have" adequate knowledge of land values in the neighborhood of the premises, was not, of itself, a sufficient cause for removing the commissioners. This falls far short of saying that they had not such knowledge. That they were not residents of the immediate neighborhood may have been a good reason for their appointment. And even if the commissioners were not informed as to the values of the land to be divided, by reason of the surrounding property, etc., it was their duty to inform themselves in that respect before making their report. Nothing appears in this record, however, from which it can be inferred that they lacked any of the qualifications prescribed by the statute, or the knowledge necessary to enable them to make a just and fair division. Nor does the fact that the statute says the commissioners shall be at all times subject to the direction of the court justify the removal of the commissioners without cause. Good reasons might appear for the appointment of new commissioners, but it will not be contended that the statute vests in the court the authority to act arbitrarily or without apparent reason in removing commissioners. We are satisfied the court, upon appellee's own showing, should have overruled his motion to remove two of the commissioners first appointed.

This view of the case renders it unnecessary to discuss other questions raised upon the record. After a careful examination of the record and the testimony introduced, we are unable to see wherein the report of the first commissioners was not a compliance with the provisions of the statute, or wherein a partition made by them was not a fair and impartial division of the lands between the respective tenants in common, and are of the opinion that the chancellor erred in refusing to confirm that report, and in removing two of the commissioners and substituting others; also that the report of the second commissioners was not justified by the facts as they appeared upon the objections to the confirmation of that report. Viewing the land as valuable for manufacturing purposes, as some of the witnesses considered it, the part allotted to appellant was about one-fourth of the railroad frontage. If its value is only that of farm lands, as many of the witnesses for appellee stated, it is difficult to perceive why a tract of 115 acres, situated as the evidence shows this to be, owned by two parties, the interest of one being one-fourth only, may not be divided. Others of appellee's witnesses stated that it would not be fair to divide this tract into four equal parts. That may be true, but the commissioners were not required to so divide it. The statute says they shall allot to the several owners their shares, "quality and quantity relatively considered." The