act of all concerned. Under this view, to allow defendant in error to recover in this case would be to allow him to recover for an inJury which was, in the eye of the law, as much his own act as the act of the plaintiff in error.

It is said, however, by the defendant in error, that the trial court gave, in behalf of the plaintiff in error, the instructions which he asked, embodying the view above stated. It is true that the court instructed the jury that whosoever willfully disturbs the peace and quiet of any neighborhood or family by loud or unusual noises is, under the laws of this state, guilty of a misdemeanor, and subject to a fine on conviction thereof. The court also instructed the jury, in behalf of plaintiff in error, that if they should believe from the evidence "that, at the time of the injury complained of, the plaintiff and defendant, with others, were engaged in an unlawful enterprise or action, and in prosecuting such unlawful enterprise the plaintiff was unintentionally injured by the negligence of the defendant, then the plaintiff cannot recover for any injury received under such circumstances, while so unlawfully engaged." But the court gave 25 instructions in behalf of defendant in error, which ignored entirely the unlawful character of the enterprise in which these parties were engaged, and which based the responsibility of the plaintiff in error for negligence in the handling of his pistol, resulting in the injury to defendant in error, upon the supposition that none of the parties participating in the charivari were engaged in an unlawful transaction. The court used the following language in instruction numbered 23 given for the defendant in error, to wit: "The court instructs the jury that a charivari, so called, is not in itself unlawful." This instruction was not only incorrect as a statement of the law, but it was directly contradictory of the instructions heretofore referred to, given in behalf of the defendant. In instruction 19 given in behalf of the defendant in error, the court said: "The lawfulness of the act from which the injury resulted is no excuse for the negligence," etc. In the same instruction the court also said: "The court further instructs the jury that, although you may find the defendant was in the exercise of a lawful right, yet he is bound to use such reasonable diligence and precaution that no injury may be done to others." Clearly, these instructions thus given for the defendant in error were erroneous in holding that plaintiff in error was engaged in the exercise of a lawful right while participating in the charivari. The instructions above referred to, given for plaintiff in error, tended to make the impression upon the minds of the jury that the charivari was an unlawful transaction, while all the instructions of the defend-. ant in error, including those herein referred to, tended to make the impression upon the minds of the jury that the charivari was not an unlawful transaction. "Where the instruc

tions set up for the jury contradictory rules for their guidance, which are unexplained, and following either of which would or might lead to different results, then the instructions are inherently defective, and calculated to confuse and mislead the jury." Blashfield, Instructions to Juries, § 73; Railroad Co. v. Payne, 49 Ill. 499; Quinn v. Donovan, 85 Ill. 194.

In the first and second counts of the declaration an assault is charged against plaintiff in error. "The intention to do harm is of the essence of an assault." 2 Greenl. Ev. (16th Ed.) § 83; 1 Hil. Torts (3d Ed.) p. 181, §§ 7-9; Paxton v. Boyer, 67 Ill. 132, 16 Am. Rep. 615; Razor v. Kinsey, 55 Ill. App. 605; Kennedy v. People, 122 Ill. 649, 13 N. E. 213. In the case at bar there is no evidence in the record tending in the slightest degree to prove that plaintiff in error intended to do any harm to the defendant in error, or that the wound inflicted upon the defendant in error was in any way intentional or willful. The sole ground upon which it is sought to base a right of recovery is that the plaintiff in error was careless and negligent in the handling of the revolver, which caused the injury to the defendant in error. In view of this absence of intention or willfulness on the part of the plaintiff in error, he asked the court to instruct the jury to find for him upon the first and second counts of the declaration, but the instructions so asked were refused. We are of the opinion that the instructions to find for the defendant upon the first and second counts should have been given, and that it was error to refuse them.

The judgments of the appellate court and of the circuit court of Piatt county are reversed, and the cause is remanded to the latter court, with directions to proceed in accordance with the views herein expressed. Reversed and remanded

(198 Ill. 297)

ILLINOIS CENT. R. CO. v. JERNIGAN. (Supreme Court of Illinois. Oct. 25, 1902.) RAILROADS-PERSONAL INJURIES-INFANTSCONTRIBUTORY NEGLIGENCE - EVIDENCEINSTRUCTIONS-REFERENCE TO PLEADINGS

APPEAL.

1. A child under the age of seven years is incapable of contributory negligence.

2. Evidence in an action against a railway company for personal injuries to a person on the track examined, and held to show that the question of defendant's negligence was for the jury.

3. Instructions that if defendant was guilty of the negligence "charged in the declaration," and such negligence was the proximate cause of plaintiff's injuries, he should recover, if in the exercise of ordinary care, were not objectionable as referring the jury to the declaration to determine the material issues.

4. A general statement by counsel for appellant that refused instructions embodied principles of law applicable to the case, and not covered by other instructions given, was insufficient to require review by the supreme court.

5. In an action against a railroad company for personal injuries, instructions for defendant proceeding on the theory that its rights were

unaffected by proof tending to show the existence of a street at the place where plaintiff was injured were properly refused.

Appeal from appellate court, Fourth district. Action by Elmer E. Jernigan against the Illinois Central Railroad Company. From a judgment of the appellate court (101 Ill. App. 1) affirming a judgment for plaintiff, defendant appeals. Affirmed.

and other witnesses, that it was in use as a street, and the testimony tended to show that the city, the appellant company, and certain owners of property entered into an arrangement by which Thirteenth or Union street was extended through from Hanson street to Hall street. The place where the injury occurred was on such extended street, between Hanson and Hall streets. There was a switch upon the east side of the main The employés of the

BOGGS, J. The appellee, then a child less than seven years of age, was on the 15th day of March, 1899, run upon by the rear car of a freight train on appellant's tracks, and his right foot, ankle, and leg so badly crushed and injured that it became necessary to amputate his limb. In an action on the case instituted in the circuit court of Jackson county against the appellant company to recover for such injuries, a judgment was entered in his favor in the sum of $4,400, and the same has been affirmed in the appellate court for the Fourth district. This is an appeal from the judgment of affirmance.

It is urged the court should have sustained the motion entered by the appellant company at the close of all the testimony to peremptorily direct the jury to return a verdict in its favor. The grounds of the motion are: First, that it appeared from the testimony that the injuries suffered by the appellee were occasioned by his failure to use ordinary care for his own safety; second, there was a total lack of evidence to show that the servants of the appellant company in charge of the train were guilty of negligence.

In Railway Co. v. Tuohy, 196 Ill. 410, 63 N. E. 997, we held, in analogy to the rule of the common law, which exempted children under the age of seven years from criminal responsibility, that up to the age of seven years a child should be regarded, as matter of law, as incapable of such conduct as will constitute contributory negligence. pellee was under the age of seven years when he was injured, and for that reason the court should not have charged the jury that he could not recover, on the ground that his conduct had contributed to his injury.

The ap

Nor could the court, under the circumstances disclosed by the evidence, declare, as matter of law, that the servants of the appellant company acted with due care. The train which injured the appellee consisted of an engine, eight freight cars, and a caboose, and at the time was engaged in switching cars on the tracks of the company in the city of Murphysboro. The declaration alleged that the tracks of the company were there laid in one of the streets of the city. The company contended that its tracks were laid upon its own right of way. The locus in quo was never platted as a street, but it appeared from the testimony of George W. Andrews and Robert Martin, witnesses for the appellant,

appellant company in charge of the train intended to put some refrigerator cars which were in the train upon the switch. The train had been moved some distance north of the switch, the locomotive being at the northern end of the train. The train was put in rapid motion backwards, in order that the caboose at the south end of the train, which it was intended should be detached from the train before reaching the switch, would, when uncoupled, run of its own momentum along the main track past the northern switch opening, while the remainder of the train would follow somewhat more slowly, and could be turned into the switch after the caboose had passed the switch opening; both the train and the caboose being all the time in motion. The train crew consisted of the engineer and fireman, the conductor, and two brakemen, The engineer and fireman were in the cab of the engine. The conductor, Gutmann, and the two brakemen, Hartman and Eyesfelter, were in the caboose. Hartman was to alight at the switch target to throw the switch after the caboose had passed, and allow the remainder of the train to enter the switch. Eyesfelter was stationed upon the caboose to "ride it" past the opening of the switch, and check its motion at the proper place, farther down the main track. He noticed some boys near the track at about the point where the appellee was injured. One of these boys was the appellee, who had laid two pins across each other on one of the rails of the track, in order that the wheels of the caboose should run over them "and make scissors." After the caboose had passed, the appellee ran to the railroad track to get the "scissors," and while picking them up was run upon by the remainder of the train, which, as we before said, was backing down to the switch. There was no one upon the train except the engineer and fireman, who were on the engine. The conductor, Gutmann, and Brakeman Eyesfelter were in the caboose, and the other brakeman had ridden the caboose to the switch target, and had alighted for the purpose of opening the switch after the caboose had passed, in order to let the remainder of the train into the switch. There was evidence tending to show that the portion of the train which ran upon appellee was moving at a greater rate of speed than the ordinances of the city permitted. That the employés of the appellant company engaged in the management of the train were not guilty of negligence in thus operating the

train at the place in question, and under the circumstances disclosed by the evidence, manifestly could not be declared as a matter of law. It was a question of fact to be determined by the jury.

Numerous objections preferred to the instructions given to the jury by the court have their basis in the allegations of the third count of the declaration as it was originally framed. A demurrer was sustained to this count, and the cause was heard upon the first and second counts, only, of the declaration. Counsel who present the case for the appellant company in this court did not appear in the cause in the trial or appellate courts, and were not advised by the record, as it came to their attention, that a demurrer had been sustained to the third count. An amended record afterward filed in this court disclosed that the third count had been held obnoxious to demurrer. Other of the objections presented against the instructions have reference to alleged errors in respect of the application of the doctrine of contributory negligence as a defense to the action. In view of the law as announced by this court in Railway Co. v. Tuohy, supra, that defense was not available to the appellant company, the plaintiff being a child under the age of seven years.

The complaint is not well taken that certain of the instructions referred the jury to the declaration to determine what were the material allegations thereof. It is for the court to determine what issues are raised by the allegations of the pleadings, and it would be error to refer a jury to the pleadings to determine for themselves the issues in a case. The instructions in the case at bar were so framed as to advise the jury as to the course to be pursued if they "believed, from the weight of the evidence," defendant was guilty of the negligence charged in the declaration. Instruction No. 1 was as follows: "In this case, if you believe, from the weight of the evidence, that the defendant was guilty of the negligence charged in the declaration, and that such negligence was the proximate cause of the plaintiff's injuries, then you shall find the defendant guilty, provided you further believe from the evidence that the plaintiff at the time of the injury was in the exercise of reasonable care for his own safety." It may stand as the representative of the other instructions to which this complaint is addressed. These instructions did not permit the jury to construe the declaration in order to determine the legal effect of that pleading. The reference in the instructions is to the narration of facts in the declaration as constituting the charge of negligence, in order that the jury may determine whether such facts had been proven. 11 Enc. Pl. & Prac. 157. These instructions do not infringe the rule that it is for the court to construe the pleadings, and determine which of the allegations are material, and what issues are joined by the parties.

It is contended the court erred in refusing to give all of certain instructions which were asked by the appellant company and refused. The reason advanced by counsel is a mere general statement that the refused instructions embodied principles of law applicable to the case, as to which the jury were not advised by any of the instructions that were given. "Mere general statements that a ruling is wrong, without any attempt to point out wherein the error consists, or to advance any reason or argument in support of the simple assertion that error has occurred, discloses nothing to adverse counsel, and does not impose upon a court of review the duty of instituting an investigation of the record in order to ascertain if error of some nature or kind may not be found. The presumption obtains that the trial court ruled correctly in giving instructions, and in order to overturn that presumption an appellant or plaintiff in error must affirmatively disclose that error intervened." Chicago & A. R. Co. v. American Strawboard Co., 190 Ill. 268, 60 N. E. 518. It appears, however, from an examination of the instructions, that they were properly refused,-some for the reason they erroneously invoked the doctrine of contributory negligence as a defense; others because they proceeded upon the theory the duty and liability of the appellant company were unaffected by the proof tending to show the existence of a street at the place where the appellee was hurt.

The judgment of the appellate court is affirmed. Judgment affirmed.

(198 Ill. 288)

ST. LOUIS NAT. STOCK YARDS v. GODFREY.

(Supreme Court of Illinois. Oct. 25, 1902.) COLLISION IN SWITCH YARD-APPLICABILITY OF

STATUTE-NEGLIGENCE-CONTRIBUTORY

NEGLIGENCE FELLOW SERVANTS EVI

DENCE-INSTRUCTIONS.

1. Act entitled "An act in relation to fencing and operating railroads" (section 12), as amended June 19, 1885 (Hurd's Rev. St. 1899, p. 1330), providing that trains on any railroad, when approaching a crossing with another railroad on the same level, shall be brought to a full stop, and the person in charge of the engine shall positively ascertain that the way is clear before proceeding, does not apply to a switch yard, consisting of an intricate system of tracks all belonging to the same company.

2. Negligence of plaintiff's fellow servant does not prevent recovery of one also negligent, who was not their master.

3. It is not negligence per se for an engineer to take a train into a switch yard over one track in contravention of a rule of the owner that such track shall be used only for outbound trains, he not having notice of the rule, and there being evidence that it was not enforced, but was disregarded habitually, with the owner's knowledge and acquiescence.

4. On the question of negligence in the case of a collision in a switch yard, evidence of the environment and the usual manner of doing the business there is competent.

5. An instruction, in an action for collision in defendant's switch yard, that a rule of defendant relative to use of tracks by crews entering

the yard is to be disregarded in the case, if it was habitually violated with defendant's knowledge and acquiescence, or was not enforced as to the crew with which plaintiff was working, correctly states the law, and is not misleading.

6. An instruction that defendaut is liable if it was guilty of the negligence charged, and plaintiff's injury resulted therefrom while he was in the exercise of ordinary care for his safety, is not erroneous, as limiting the time plaintiff was required to use due care to the moment when he was injured.

7. An instruction that defendant is liable if the jury believe from the evidence that defendant's engine, which struck plaintiff's engine, was not managed with ordinary care, and plaintiff's injury was the direct result of such negligence while he was in the exercise of ordinary care for his own safety, not only does not limit the time plaintiff was required to use ordinary care to the moment when he was injured, but does not assume that at some time he was in the exercise of ordinary care, the words "if the jury believe from the evidence" applying to the entire sentence.

8. An instruction that the question whether plaintiff was guilty of negligence which contributed to his injury, and without which the accident would not have occurred, is for the jury, is not misleading.

Appeal from appellate court, Fourth district.

Action by August Godfrey against the St. Louis National Stock Yards. From a judgment of the appellate court (101 Ill. App. 40) affirming a judgment for plaintiff, defendant appeals. Affirmed.

This was an action on the case, in the city court of East St. Louis, by August Godfrey, appellee, against the St. Louis National Stock Yards, appellant, to recover for a personal injury suffered by him in the switch yards of appellant December 30, 1898.

The declaration contained but one count, and charged, in substance, that the appellee was in the employ of the Baltimore & Ohio Southwestern Railroad Company as a locomotive engineer, and was required, in the discharge of his duties, to operate and run a certain switching engine of said company in hauling freight cars into and out of the yards of the defendant at said city, and defendant was conducting the business of a stock yard company, and had in its use for that purpose divers switching engines, cars, trains, railway tracks, and other appliances necessary in prosecuting said business, whereby it became the duty of defendant to conduct and carry on its said business in a reasonably prudent manner in order to avoid injuring the plaintiff while he was performing said services, but that the defendant, not regarding such duty, so carelessly and improperly managed and controlled one of its engines, with cars attached, the headlight of which engine was not burning, that it was negligently made to collide with the engine which appellee was operating, whereby he was thrown to the ground and permanently injured without any fault or negligence on his part. The plea was not guilty.

Appellee was the engineer on a locomotive of the aforesaid railroad company, and with a switching crew of five men besides himself

had run into the switch yards of appellant to do some switching for his road. He was familiar with the tracks and method of doing business in the yards. To enter the switch yards two tracks were available, one called the "Whittaker Track" and one called the "Hog-House Track." The Whittaker track was in use by another switching crew when appellee entered the yards, and so he used the hog-house track. To get to the place of his destination he had to cross several other tracks, the last one being the crossing of the track known as the "Coal Track" or the "Nelson Morris Track," which comes out from behind the large building of the Nelson Morris Company and crosses the hog-house track a little west of the building, almost at right angles. A switch engine of appellant, drawing a train of cars, was approaching this crossing at the same time. The two locomotives met on the crossing, and appellant's engine pushed appellee's engine' sideways and partly off the track, causing appellee to fall out between the engine and the tender, whereby he was seriously and permanently injured. When within 50 feet of the crossing appellee had stopped his engine and had given two blasts of the whistle, and, not hearing any signal from any other engine, assumed, under the rules observed in the switch yards in regard to such signals, that the crossing was clear. He had sent his helper, Kehoe, ahead to see if the track was clear, and to throw a switch a little way beyond the crossing. When Kehoe reached the crossing he signaled appellee to go ahead, and then proceeded to throw the switch. The headlight on appellee's engine was burning and the bell was ringing. None of his crew heard any whistle or bell from the approaching engine of appellant's train, and they testified that its headlight was not burning. Appellant's switching crew testified that their headlight was burning and the bell ringing and that the whistle was blown for the crossing, but that they heard no signals from appellee's engine, and that its headlight was not burning. It was about 5:30 o'clock in the afternoon, and was getting dark. The two engines were hidden from each other's sight, as they approached the crossing, by the Nelson Morris building and by box cars which filled two stub tracks. The wind was blowing, and other engines were working in the yards. One of appellant's switching crew was on the front footboard of the engine, and when about 15 feet from the crossing discovered appellee's engine approaching. He immediately signaled appellant's engineer to stop, whereupon the engineer set the brakes and reversed his engine and brought it to a stop, but the slack of the loaded cars attached to the engine, it being on a slight down grade, pushed it against appellee's engine, and thus caused the accident, as before stated.

At the close of appellee's evidence, appellant's counsel moved the court to instruct the jury to find a verdict for appellant, which

motion was denied. They also moved to exclude certain portions of the evidence from the jury, and these motions were denied also. These several motions were renewed at the close of all the evidence, and again denied. The jury found the issues for the plaintiff, and assessed his damages at $5,500, which amount was reduced to $4,000 by remittitur, and judgment was entered therefor. The appellate court for the Fourth district affirmed the judgment, and the appellant now brings the case to this court for review.

Messick & Crow, for appellant. F. C. Smith and M. Millard, for appellee.

CARTER, J. (after stating the facts). The first contention of appellant is that the trial court erred in refusing to direct a verdict in its favor, on the ground alleged that the evidence did not tend to prove that the plaintiff used ordinary care for his own safety, and because there was no evidence that he performed the duty required of him by the statute before attempting to pass the crossing. The statute referred to is section 12 of "An act in relation to fencing and operating railroads." as amended June 19, 1885 (Hurd's Rev. St. 1899, p. 1330), viz.: “All trains running on any railroad in this state, when approaching a crossing with another railroad upon the same level, * *

shall

be brought to a full stop before reaching the same, and within eight hundred feet therefrom, and the engineer or other person in charge of the engine attached to the train shall positively ascertain that the way is clear and that the train can safely resume its course before proceeding to pass the

* crossing." The point made is that the plaintiff, who was in charge of the engine, did not "positively ascertain" that the way was clear, and that such violation of the statute was negligence per se. We are of the opinion that the statute does not apply to switch yards like the one in question, consisting of an intricate system of tracks running in various directions, some crossing each other, all used for switching purposes, and belonging to the same railroad or company.

It is also urged that Kehoe, the plaintiff's helper, was negligent in not seeing the approaching train when he ought to have seen it, and in not signaling appellee to stop, and that his negligence was imputable to appellee. Upon this question the trial court gave an instruction at the instance of the defendant, which told the jury, in substance, that if they found Kehoe guilty of negligence they should find a verdict for the defendant. This instruction was more favorable to the defendant than it was entitled to. Railroad Co. v. O'Connor, 119 Ill. 586, 9 N. E. 263; Railroad Co. v. Harrington, 192 Ill. 9, 61 N. E. 622. Kehoe was not an employé of the defendant, and if it was through his negligence that appellee was injured that would not absolve the defendant from responsibility if it was also negligent. The case of Rail

way Co. v. Snyder, 117 Ill. 376, 7 N. E. 604, is not a parallel case. The case at bar was not brought against the common master of Kehoe and the plaintiff, while the case last cited was brought against the common master and another.

It is also claimed that there was no evidence that Godfrey used reasonable and proper care in attempting to pass the crossing, and that he is contradicted by his own witnesses. There was evidence tending to prove that appellee was in the exercise of ordinary care for his safety when attempting to pass over the crossing, and it is not within the province of this court to weigh the evidence when it is conflicting.

It is further said that there was no evidence that the defendant carelessly and improperly managed its switch engine so that it was negligently made to collide with plaintiff's engine. It was a controverted fact whether defendant gave any signals or had its headlight burning. It is conceded that it did not send out any man to see whether the crossing was clear before moving its train down. There was evidence that there was a rule or custom to send out a flagman before reaching the crossing, to ascertain whether it was clear or not. There was evidence tending to prove negligence in the respect mentioned, and the fact has been finally and conclusively settled against the appellant.

It was also claimed by appellant that it had an order in force that all in-bound trains should take the Whittaker track, and that the hog-house track was only to be used by outbound trains. The plaintiff never had any notice of such rule, and there was evidence tending to prove that the rule was not enforced, but was disregarded habitually, with the knowledge and acquiescence of the defendant. It cannot, therefore, be said that it was negligence per se for plaintiff to take the hog-house track in going into the yards.

The motions to direct a verdict for the defendant were properly overruled.

Evidence was admitted by the trial court with reference to the location of certain buildings, tracks, and cars, and with reference to the usual manner of conducting the business of appellant and others in appellant's yards. All this was competent evidence in the case. The environment and usual manner of conducting the business involved at the place of the injury is competent as shedding light on the acts and conduct of the parties.

Error is assigned on the giving of the following instructions for appellee:

"(1) The jury are instructed that if they believe from the testimony the rule or notice of the defendant read in evidence, relating to the use of tracks by crews of the plaintiff's company in entering the defendant's yard from the Terminal Railroad Association yard, was habitually violated with the knowledge and acquiescense of the defendant, or was not enforced as to the switching crew with which the plaintiff worked, then the