BERNARD RODEN

v.

THE CHICAGO AND GRAND TRUNK RAILWAY COMPANY.

Filed at Ottawa May 14, 1890.

1. NEGLIGENCE-travelers along right of way-care required of railway company. A railway company owes a trespasser traveling along its tracks no duty to furnish a flagman or to ring a bell on the approach of a train. These warnings are for the benefit of those about to cross railroad tracks.

2. Those who travel on foot upon railroad tracks as highways, are themselves guilty of gross negligence, and the railway company is only responsible for willful or wanton injuries to them, or for injuries resulting from a degree of negligence equivalent thereto.

3. PRACTICE-directing what the verdict shall be. Where there is no evidence to support an alleged cause of action in favor of the plaintiff, it is proper for the court, after the plaintiff has closed, to instruct the jury to find for the defendant.

APPEAL from the Appellate Court for the First District;heard in that court on appeal from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Messrs. BURKE & HOLLETT, and Mr. JOHN GIBBONS, for the appellant.

Mr. F. H. CULVER, for the appellee.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court: This was an action on the case, by appellant, for negligence of appellee, causing personal injury to appellant. The Superior Court, after hearing all the evidence offered on behalf of appellant, instructed the jury to find for appellee. Verdict and judgment thereon were thereupon rendered in behalf of appellee, and that judgment was affirmed in the Appellate Court for the First District. The only question here is, whether there is evidence in the record which would support a judgment in behalf of appellant.

Opinion of the Court.

The declaration contains four counts, in each of which it is alleged appellant was in the observance of due care for his personal safety at the time that he was injured. In the first count the negligence of appellee is alleged to have been in carelessly and improperly driving and managing its engine. In the second count it is alleged to have been in running at a greater rate of speed than provided by an ordinance of the city. In the third count it is alleged to have been in not ringing a bell. In the fourth count it is alleged to have been in omitting to have a flagman at the crossing.

At the time appellant was injured he was traveling longitudinally along the main track of appellant's railway, where trains were frequently passing in each direction. The company owed him, therefore, no duty in respect to furnishing flagmen, or ringing a bell, which are for the benefit of those about to cross railroad tracks. (Chicago, Rock Island and Pacific Ry. Co. v. Eininger, 114 Ill. 79.) Those who travel upon railroad tracks as highways, are themselves guilty of gross negligence, and the railroad company is only responsible for willful or wanton injuries to them, or for injuries resulting from a degree of negligence equivalent thereto. Illinois Central Railroad Co. v. Godfrey, 71 Ill. 507; Illinois Central Railroad Co. v. Hetherington, 83 id. 510; Blanchard v. Lake Shore and Michigan Southern Ry. Co. 126 id. 416.

There is no evidence tending to show negligence in driving and managing appellee's engine, or that its engine was running at a greater rate of speed than provided by ordinance. Appellant testified that he was walking south on the railroad track, and, observing an engine approaching on the same track, he stepped over on another track, and, as he did so, he was struck and injured by an engine approaching from his rear. As he stepped on the other track, he says he did not look in the rear, from which the engine that struck him was approaching, and that he walked only twenty-five or thirty feet until he was struck. There is no evidence that he was observed by

Syllabus.

those in charge of the engine that struck him, before he was struck, or, if he had been, that the engine could have been stopped by any management, however skillful, before he was struck. There is no ordinance in evidence limiting the speed of trains at this point, and no evidence tending to show that the engine was being run at a high and reckless rate of speed. We find no cause to disturb the judgment below, and it is therefore affirmed.

Judgment affirmed.

HENRY W. AVERY, Admr.

v.

ELIZABETH M. MOORE.

Filed at Ottawa May 14, 1890.

1. PRACTICE-special finding by jury—if not satisfactory-motion for new trial. Where a party asks for a special finding of fact by the jury, and they return an answer to the question, if he thinks such finding is not supported by the evidence he should ask for a new trial, assigning such finding as a reason.

2.

SAME-papers going to the jury— —on their retirement. The fact that the jury, on the trial of a claim against an estate, on their retirement may take the claim with them, without the assent of the parties, is not such an irregularity, if one at all, as to work a reversal of the judgment. It will not be presumed, in the absence of a showing to that effect, that the party was prejudiced thereby.

3. EVIDENCE-tending to prove the issue-admissibility. There is no error in the admission of evidence objected to, which tends to prove the issues raised on the trial, and comes from competent sources. Its weight is for the jury.

4. ERROR WILL NOT ALWAYS REVERSE-giving and refusing instructions. A judgment will not be reversed merely for the reason that some of the instructions given are inaccurate, or even though some of those refused contain correct propositions of law, if it sufficiently appears, from special findings of fact by the jury, that the giving or refusing of such instructions had no influence on the verdict.

Opinion of the Court.

APPEAL from the Appellate Court for the Second District;heard in that court on appeal from the Circuit Court of Boone county; the Hon CHARLES KELLUM, Judge, presiding.

Mr. J. C. GARVER, and Mr. WALES W. WOOD, for the appellant.

Mr. W. R. DODGE, Mr. R. W. WRIGHT, and Mr. N. C. WARREN, for the appellee.

Mr. JUSTICE WILKIN delivered the opinion of the Court:

This litigation grows out of the following claim: "The estate of George Gilson, deceased, to Elizabeth M. Moore, Dr.-To work, labor and services done and performed by the said Elizabeth M. Moore for the said George Gilson, in his lifetime, and at his special instance and request, for and during the time from October 26, 1881, to March 23, 1886, excepting and deducting from said period ten weeks of said time, and leaving the time of said service four years, two months and seventeen days, or 1537 days, at one dollar per day." The claim was filed in the county court of Boone county, and on the 5th day of December, 1887, by agreement of parties, transferred to the circuit court of that county. A trial by jury resulted in a judgment for claimant for $1537. On appeal, the Appellate Court for the Second District affirmed that judgment, and the administrator again appeals.

The claim is based upon the following alleged facts: George Gilson, deceased, was claimant's grandfather. After the death of his wife she kept house for him about two years, at his home in Belvidere, this State. After that she married, and, with her husband, went to Kansas, intending to make that her future home. Mr. Gilson was left without any one to keep house for him or see to his wants, his own children having all, long before that time, married and set up homes of their own. He was about eighty years of age, and in feeble health. About

Opinion of the Court.

August, 1881, he went to Kansas to see claimant, and, as she insists, by a promise to give her his Belvidere homestead, worth some $1500, induced her to agree to return to Illinois and keep house for and take care of him during the remainder of his life, which agreement, she claims, she fully performed, except as prevented by Mr. Gilson and his daughter, who finally removed him from his house, and from her charge and care. She also claims that her said grandfather, in pursuance of said agreement, did execute a will, bequeathing to her said homestead property, but after being removed from her care, and shortly prior to his death, was induced to destroy the same, and by a deed and subsequent will disposed of all his estate, real and personal, giving her nothing.

There is no dispute as to the fact that appellee and her husband did return from Kansas about October 26, 1881, and from that date to March 28, 1886, resided in the homestead of the deceased with him. From that date to October 26, 1886, when he died, he was at the home and cared for by a daughter, who took him away from his own home, without claimant's consent. Claimant's theory of her case is, that having proved the contract, and performance on her part, so far as allowed to perform it, and deceased having failed to give her said homestead, she is entitled to recover from his estate what the services performed by her under the contract were reasonably worth.

Appellant denied the contract, and insisted that for any services performed by claimant for deceased she had been fully paid, by support furnished herself and family by deceased; that she failed to take care of him as long as he lived, and that he left his home of his own choice, because of her failure to take proper care of him; that if there was any agreement whatever on the part of deceased, it was with her and her husband. jointly, and the husband had receipted for all services rendered for the time she claims for; that the living together of claimant and family and deceased was by an agreement that he should furnish the house, and claimant should keep the same and take