Opinion of the Court.

reports, is published in 28 N. E. Rep. 911, is so similar to the one at bar on this question that it deserves more than a passing notice. The substance of the case is stated in the syllabus by the reporter as follows:

"Plaintiff, a woman about 65 years of age, of ordinary intelligence, and possessed of good sight and hearing, was injured at a railroad crossing. The railroad had been raised several feet higher than the sidewalk, and the work of grading was still unfinished, and the crossing in a broken condition. There were three tracks, and a train was approaching on the middle one. The view was obstructed somewhat with buildings, but after reaching the first track it was clear. The evidence showed that the plaintiff was familiar with the passing of trains; that she did not look before going upon the track; and that, if she had looked, she could have seen the train a quarter of a mile. When the whistle sounded she looked directly at the train, and hurried to get across. Plaintiff testified that she looked before going upon the track, but did not see the train or hear the whistle; that the only warning she had was the noise of its approach, after she was on the first track; and that she did not then look to see where it was, or on which track it was coming, but started to cross as fast as possible, and in so doing stumbled and fell between the rails. The signals required by the statutes were not given: Held, that it did not appear as matter of law that plaintiff was guilty of gross or wilful negligence, and that it was proper to submit the question to the jury."

See also Evans v. Lake Shore & Mich. South. Railway, (Mich.) 50 N. W. Rep. 386; Ellis v. Lake Shore & Mich. South. Railway, 138 Penn. St. 506; Brown v. Tex. & Pac. Railway, 42 La. Ann. 350; Heddles v. Chicago &c. Railway, 77 Wisconsin, 228; Parsons v. New York &c. Railroad, 113 N. Y. 355; Cooper v. Lake Shore & Mich. South. Railway, 66 Michigan, 261.

Nothing was said by this court in Railroad Company v. Houston, 95 U. S. 697, or in Schofield v. Chicago & St. Paul Railway, 114 U. S. 615, which are relied upon by the defendant, that in anywise conflicts with the instructions of the court

Opinion of the Court.

below in this case, or lays down any different doctrine with respect to contributory negligence. Delaware Railroad v. Converse, 139 U. S. 469. Nor do the Michigan authorities, which are relied upon, when read in the light of the particular facts and circumstances of each separate case, enunciate a different doctrine; but, so far as applicable, they tend to sustain the instructions objected to.

It is also insisted that the court erred in refusing the following request of the defendant for instructions:

"If you find that the deceased might have stopped at a point fifteen or eighteen feet from the railroad crossing, and there had an unobstructed view of defendant's track either way; that he failed so to stop; that instead the deceased drove upon the defendant's track, watching the Bay City train, that had already passed, and with his back turned in the direction of the approaching train, the deceased was guilty of contributing to the injury, and your verdict must be for the defendant, although you are also satisfied that the defendant was guilty of negligence in the running of the train in the particulars mentioned in the declaration."

The reason given by the court for refusing this request was that "it is too much upon the weight of the evidence and confines the jury to the particular circumstance narrated without notice of others that they may think important." This reason. is a sound one. In determining whether the deceased was guilty of contributory negligence the jury were bound to consider all the facts and circumstances bearing upon that question, and not select one particular prominent fact or circumstance as controlling the case to the exclusion of all the others. Cooper v. Lake Shore & Mich. South. Railway Co., supra; Baltimore etc. Railroad v. Kane, 69 Maryland, 11. Moreover, the substance of the request, so far as it was correct, had already been given, in general terms, by the court in that part of the charge referring to the degree of care and caution required of the deceased in approaching the railroad crossing, in order to free him from the charge of contributory negligence; and the refusal of the court to give it again, in different language, was not error. Erie Railroad Co. v. Winter, 143 U. S. 60, 75.

VOL. CXLIV-28

Statement of the Case.

There are no other questions in the case that call for special consideration. We have endeavored to consider and pass upon all of the material ones that have been discussed by counsel both in their brief and in oral argument at the bar. We do not think that it has been shown that any error was committed in the trial below which was prejudicial to the rights of the defendant.

Judgment affirmed.

KEATOR LUMBER COMPANY v. THOMPSON.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

No. 242. Argued and submitted March 25, 1892. - Decided April 4, 1892.

An objection that replications were not filed to the defendant's pleas when the trial commenced, nor before judgment, with leave of court, comes too late if made after cntry of judgment.

When a defendant is compelled to proceed with a trial in Illinois in a case in which the issues are not made up by the filling of replications to the pleas, and makes no objection on that ground, the failure to do so is equivalent to consenting that the trial may proceed.

In Illinois the filing by the plaintiff under the statute of that State (2 Starr & Curtis' Stats. 1801) of an affidavit "showing the nature of his demand and the amount due him from the defendant" does not prevent the recovery of a larger sum if a larger sum is claimed by the pleadings and shown to be due by the evidence.

THE case was stated by the court as follows:

Benjamin F. Thompson and Homer Root brought this action of assumpsit against the J. S. Keator Lumber Company for a balance alleged to be due them for cutting and hauling saw-logs, etc. The two main grounds of dispute were: (1) Whether the price for the work was limited by the contract in question to $3 per thousand feet of saw-logs cut and delivered into the boom limits of the Black River, Wisconsin, without extra charge, or whether the plaintiffs, in addition to the above price, were entitled to be paid for the driving or delivery of the logs into said boom limits; (2) whether the plaintiffs had

Statement of the Case.

not overcharged the defendant in the scaling and measurement of the logs.

With the declaration was filed an affidavit by plaintiffs under the statute of Illinois, providing that "if the plaintiff in any suit upon a contract expressed or implied for the payment of money, shall file with his declaration an affidavit, showing the nature of his demand and the amount due him from the defendant, after allowing to the defendant all his just credits, deductions and set-offs, if any, he shall be entitled to judgment as in case of default, unless the defendant, or his agent or attorney if the defendant is a resident of the county in which the suit is brought, shall file with his plea an affidavit stating that he verily believes he has a good defence to said suit upon the merits to the whole or a portion of the plaintiff's demand, and if a portion, specifying the amount (according to the best of his knowledge and belief)," etc. 2 Starr & Curtis' Stat. Ill. p. 1801, 37, § 36.

The defendant filed a plea in abatement, and, subsequently, pleas of non-assumpsit and set-off; the latter being for an amount exceeding that sued for by the plaintiff. With these pleas the defendant filed an affidavit of merits in conformity with the above statute.

The parties, by written stipulation, waived a jury and agreed that the case be set for trial any day not earlier than March 28, 1888. Under this stipulation the plaintiffs had it set for trial on the day just named. The defendant, on that day, requested a postponement of the trial until the arrival of its Wisconsin counsel, who had had sole charge of the preparation of the defence, and also because of the absence of its principal witness. The court ruled that unless the defendant showed legal grounds for a continuance, the trial should proceed forthwith. The defendant then entered a motion for continuance based upon affidavit as to what the absent witness would state. The plaintiffs offering to admit upon the trial that the witness, if present, would testify as set forth in the affidavit, the court overruled the motion for continuance, and held that the trial must proceed forth with. To this action of the court the defendant excepted. Thereupon, the trial was commenced

Opinion of the Court.

on the 28th of March, 1888, in the absence of the defendant's Wisconsin counsel, who, however, arrived before the conclusion of the trial, which continued during the 29th and 30th of March. On the last-named day, but before the trial was concluded, the plaintiffs, without notice to the defendant or its attorney, and without obtaining leave from the court, filed with the clerk replications to the defendant's pleas.

On March 31st, 1888, the court made a general finding of the issues for the plaintiffs, and assessed their damages at $15,568.99, for which amount judgment was entered against the defendant. To this judgment the defendant excepted on the ground that it was excessive in amount.

Mr. James K. Edsall for plaintiff in error submitted on his brief.

Mr. James O'Neill for defendant in error. Mr. John S. Miller was with him on the brief.

MR. JUSTICE HARLAN, after stating the case, delivered the opinion of the court.

The principal assignments of error have nothing of substance in them. When the plaintiffs agreed to admit upon the trial that the defendant's absent witness would testify as stated in the affidavit filed for a continuance of the case, and the court thereupon ruled that the trial should proceed, attention was not called to the fact that replications had not been filed to the first and third pleas, and judgment was not asked upon those pleas for want of such replications. Nor did the defendant, before judgment, move for a new trial upon the ground that its first and third pleas were unanswered at the time the trial began. The filing of replications to those pleas, during the progress of the trial, and without leave of the court, was, of course, improper and irregular. But it must be presumed that the fact of their having been so filed was known to the defendant before the trial was concluded, or before the judg ment was entered. Besides, the judgment was under the control of the court during the term; and if it had been made to