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determine, and the court properly refused the instruction to find for the defendant.

The appellee testified that after his injury he went to the offices of Dr. Hamm and Dr. Kiser, which were near, but found both the doctors out. He determined to go to the hospital at Granite City and went to the corner of Third and "G" streets to take a car of the Illinois Traction System. When the car came he became dizzy and was not able to get on the car but fell at its side and fainted. After the car passed he was taken to Dr. Hamm's office, his foot was examined and he was then taken in an ambulance to the Granite City hospital, where Dr. Hamm and Dr. Scott amputated the front part of his foot. Afterward the appellee went to a hospital in St. Louis, where his foot was amputated above the ankle. The appellant introduced evidence tending to show that the appellee was not injured, as he claimed, by a car of the appellant on Madison avenue near Second street but was injured by a car of the Illinois Traction System on Third street, and that this injury was caused by his voluntary act in placing himself upon the track. It is the claim of the appellant that the appellee received his injuries by his own voluntary act and that the second amputation of the foot was unnecessary. The appellant offered to prove that at the time of the accident the appellee was carrying a large amount of accident insurance, so written that only a small amount was to be paid in case of an injury causing the amputation of a foot below the ankle and the full amount or a larger proportion in case of an injury causing an amputation above the ankle. The action of the court in refusing to admit this evidence is assigned as error. The evidence should have been admitted. In the opinion of the surgeons who performed the first operation the amputation above the ankle was unnecessary. They testified that the appellee offered them $1000 to amputate the foot above the ankle and they refused to do so. The evidence as to the insurance was admissible for the

purpose of showing a motive for the appellee to inflict the injury on himself and a motive for the performance of an unnecessary operation. It has some tendency to corroborate the evidence on behalf of the appellant that the injury was done by a car of the Illinois Traction System and not by the appellant's car and that it was self-inflicted, as well as that the second operation was unnecessary.

Objection is made to instructions given for the appellee and to the refusal of one which was asked by appellant, but the instructions, taken as a series, informed the jury fully and correctly as to the law of the case.

For the error indicated the judgments of the Appellate Court and the circuit court are reversed and the cause remanded to the circuit court. Reversed and remanded.

Mr. CHIEF JUSTICE FARMER, dissenting.

THE CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY, Appellee, vs. THE STATE PUBLIC UTILITIES COMMISSION et al.-(THE CAIRO AND ST. LOUIS RAILWAY COMPANY et al. Appellants.)

Opinion filed April 20, '16-Petition for rehearing denied June 9, '16.

1. PUBLIC UTILITIES-right of one public utility to assign crosserror on appeal by another. Where an order of the Public Utilities Commission directing a separation of grades at the crossing of a railroad company with a public street and requiring the railroad company to pay 65 per cent of the cost, the city to pay 15 per cent and a street railway company to pay 20 per cent is reversed by the circuit court as unreasonable in not requiring any contribution by an interurban company using the street railway company's tracks, the railroad company may assign cross-error, on appeal by the interurban company, and urge that the order for separation of grades is unreasonable, and also that the interurban company should have been required to pay two-thirds of the cost of such separation.

2. SAME whether it is reasonable to require a separation of grades is a question of fact. Whether it is reasonable to require a

separation of grades at the crossing of a railroad with a public street is a question of fact depending upon the particular circumstances, including the amount of travel on the street, the present elevation of the tracks above the street grade, the financial condition of the railroad company, the cost of the work required, and other matters, and no general rule can be laid down which will govern all cases.

3. SAME-what does not render unreasonable an order for separation of grades. An order of the Public Utilities Commission, entered on the petition of a city, requiring a railroad company to elevate its tracks and construct a bridge across a street is not rendered unreasonable because the elevation of the tracks will require raising the grade of the tracks at another street for which no provision has been made by the city, as the Public Utilities Commission has power to adjust any controversy that may arise between the railroad company and the city in regard to such matter and to order the raising of the grade at such street.

4. SAME when no portion of cost of grade separation can be assessed against an interurban company. Where the State Public Utilities Commission orders a separation of grades at the crossing of a railroad company with a public street on which there is a street railway, it is proper, in apportioning the cost of such separation, to make no assessment against an interurban company which is using the tracks of the street railway company as a mere licensee, although the commission may take the fact of such permissive use into consideration in fixing the street railway company's proportion of the cost and make such proportion larger than it otherwise would.

APPEAL from the Circuit Court of Sangamon county; the Hon. FRANK W. BURTON, Judge, presiding.

P. J. LUCEY, Attorney General, EVERETT JENNINGS, and GEORGE M. MORGAN, for the State Public Utilities Commission.

WM. S. DEWEY, and HARRY HOOD, for city of Cairo.

GREEN & PALMER, for other appellants.

George B. Gillespie, (GillespIE & FITZGERALD, and L. J. HACKNEY, of counsel,) for appellee.

Mr. JUSTICE COOKE delivered the opinion of the court: The State Public Utilities Commission, upon the petition of the city of Cairo, ordered a separation of grades at the crossing of the main track of the Cleveland, Cincinnati, Chicago and St. Louis Railway Company (hereinafter referred to as the railway company) with Sycamore street, and ordered that the railway company pay sixty-five per cent of the cost thereof, the city fifteen per cent, and the Cairo Electric and Traction Company, (hereinafter referred to as the traction company,) the owner of a street railway track laid in Sycamore street, the remaining twenty per cent. The railway company appealed to the circuit court of Sangamon county, and the order of the commission was set aside on the ground, as stated in the judgment of the court, that the order of the commission is unreasonable, in that it does not require the Cairo and St. Louis Railway Company, an interurban railway operating cars upon the track of the traction company in Sycamore street, to pay any portion of the cost of separating the grades. From the judgment of the circuit court this appeal has been prosecuted by the Cairo and St. Louis Railway Company and the city of Cairo.

The Cairo and St. Louis Railway Company (hereinafter referred to as the interurban company) urges a reversal of the judgment on the ground that the circuit court erred in setting aside the order of the commission on the ground stated in the judgment, and the city of Cairo complains that the court erred in ordering that the costs of the proceeding be taxed against the city. The railway company has assigned cross-errors, under which it contends that the order of the commission should have been set aside not only on the ground stated in the judgment of the circuit court, but on the additional grounds that the order requiring a separation of grades is unreasonable, and that the order should have required the Cairo and St. Louis Railway Company to

pay two-thirds of the total cost of the grade separation, as provided in the Railway Crossings act.

Sycamore street is the main thoroughfare leading from the northern limits of the city of Cairo south to the business district of the city. The main track of the railway company crosses this street upon an embankment which is about eight feet higher than the surface of the street both north and south of the crossing. This track was laid about 1886 under permission granted by the city of Cairo. The traction company operates a street railway system in the city of Cairo. One of its tracks upon which it operates cars is, and has been for a number of years, laid in Sycamore street, crossing the track of the railway company. The Cairo and St. Louis Railway Company is an interurban electric railway, organized under the Railroad Incorporation act, and operates a line of railway extending north from the city of Cairo to Mounds, a distance of about nine miles. Its cars are operated in the city of Cairo upon the tracks of the traction company, including the track laid in Sycamore street, under and by virtue of a lease or contract between it and the traction company, the terms and provisions of which are not disclosed by the evidence. The lease or contract was made with the permission of the city of Cairo granted in the franchise ordinances of the two companies, both of which were passed November 18, 1908. The franchise ordinance of the traction company authorized it to "permit the Cairo and St. Louis Railway Company, its successors, lessees and assigns, to use and operate over said railways of grantee herein," and the franchise ordinance of the interurban company granted to that company the right, permission and authority, "with the consent of the Cairo Electric and Traction Company, its successors or assigns, to use in the operation of said railway and railway cars, if and as desired, the tracks, power, wires, equipment and appliances of said Cairo Electric and Traction Company" upon certain streets, including Sycamore street.

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