The

to the same matters he may testify in the pending suit; and even though it should be thus construed, it would, as we think, have no application to the present case. The proceeding under section 81 of the administration act is not a suit, nor is the executor necessarily a party to the proceeding. information referred to in the section may be given to the court by an heir, legatee, devisee, administrator or creditor. The section provides that 'the court shall require such person to appear before it by citation, and may examine him on oath,' etc. It is discretionary with the court whether the party alleged to have property belonging to the estate shall be examined under oath [Wade v. Pritchard, 69 Ill. 279], but it is the court which calls him by citation and is to examine him, which, of course, the court may do by attorneys."

Was the Appellate Court right in its holding on this question? The question is not what ought to be the statute, but what is a fair construction of the statute as it now stands. None of the cases cited by appellant, from this state, touch the exact point at issue. They simply hold that if a party is called in a case by the adverse party and the evidence does not come within any of the exceptions named in section 2, the witness becomes competent for all purposes. A careful reading of the decisions cited from other states shows that in very few of them the facts were at all like the facts in the present case. Some of the authorities' cited state that if a party is called in a case by the adverse party on a subject that is not within any of the exceptions, then he becomes competent for all purposes. Mahoney v. Jones, 35 App. Div. 84, 54 N. Y. Supp. 488; Young v. Montgomery, 161 Ind. 68, 67 N. E. 684; Warren v. Adams, 19 Col. 515, 36 Pac. 604; Seip v. Storch, 52 Pa. 210, 91 Am. Dec. 148; Taylor v. Ainsworth, 49 Neb. 696, 68 N. W. 1045. Again, it is held that where depositions of an incompetent witness are taken in a suit without objection, even though the depositions are not introduced and read as evidence, the incompetency of the witness is waived and he can be called. Jackson v. Mumford, 74 Tex. 104, 11 S. W. 1061; Thomas v. Irvin, 90 Tenn. 512, 16 S. W. 1045; In re Estate of Soulard, 141 Mo. 642, 43 S. W. 617. So far as these cases apply they tend to uphold the contention of appellees herein. Again, the cases of Rouse v. Whited, 25 N. Y. 170, 82 Am. Dec. 337, Nay v. Curley, 113 N. Y. 575, 21 N. E. 698, and Robinson v. Ferry, 11 Conn. 460, state that where an adverse party calls out a part of a conversation as an admission, then the opposite party is entitled to have all the conversation or admission, so far as it relates to the subject-matter and tends to explain it. In Beardslee v. Reeves, 76 Mich. 661, 43 N. W. 677, the court held that if a part of a preliminary examination in the probate court was introduced, then the op

posite party was entitled to have all of the testimony taken in the probate court. Other cases relied upon by appellant hold that where an adverse party is called to testify to a certain contract or transaction he is entitled to tell all about that contract or transaction. Niccolls v. Easterly, 16 Kan. 32; Lyon v. Batz, 42 Mo. App. 606; Fox v. Barrett's Estate, 117 Mich. 162, 75 N. W. 440. Two cases cited by appellant, namely, Forrester v. Torrence, 64 Pa. 29, and In re Smith's Appeal, 52 Mich. 415, 18 N. W. 195, tend to uphold the contention of appellant, but the weight of these cases is very greatly lessened from the fact that the statutes ruled upon are much different from our own.

The

It is insisted, in this connection, that the case of Lilley v. Insurance Co., 92 Mich. 153, 52 N. W. 631, raises, and decides on substantially the same state of facts, the question we are now considering. It is true that the Michigan court quoted in that case with approval the decision in Re Smith's Appeal, supra, but the part of the decision in which they referred to and relied upon the Smith Case was not necessary for the decision of the question at issue, as a careful reading of the entire opinion clearly shows. The question in Lilley v. Insurance Co., supra, was whether evidence of the witness taken on a citation before the probate court was properly admitted in another trial. Supreme Court of Michigan, in reviewing this question, stated that this evidence having been admitted, the witness who had been so examined could then, if he desired, take the stand and testify fully about these matters; but he did not attempt to so testify in the lower court, and therefore there was no necessity for a direct ruling on the question here under discussion. This court in Millard v. Millard, 221 Ill. 86, 91, 77 N. E. 595, 596, discusses the precise question here at issue, and states: "The complainant, to prove the allegations of her bill, offered in evidence portions of the testimony of the defendants given in the probate court in a proceeding for the discovery of property of the estate alleged to have been concealed or to be in their possession. It was thereby proved that the defendants, on April 22, 1896, went to the safety deposit box of the deceased, of which Jane H. Millard had the key, and took therefrom $12,070 in gold certificates, railway bonds amounting to $5,000, with coupons representing a year's interest of $350, a $50 greenback and a $10 gold piece, and that neither the deceased, nor any one representing him, was present. The defendants then offered in evidence other portions of their testimony in the probate court, for the purpose of establishing a gift of the property taken from the box by the deceased to the defendant Jane H. Millard. The evidence was objected to, but was received and considered by the master and circuit court. Ordinarily an admission is to be taken as an entirety; and, when a part

of a statement is introduced as an admission against a party, he is entitled to introduce any other part relevant to the matter in issue which will explain, qualify, limit, modify, or destroy the effect of the admission. 1 Greenleaf on Evidence, § 201; 1 Elliott on Evidence, § 241. In this case the evidence, perhaps, went beyond the rule as applied to ordinary cases, but, under the pleadings, none of the evidence so offered was admissible or could be considered. The evidence was in contradiction of the defendant's answers, and the findings of the master and chancellor based upon it were at variance with the averments of the answers." While this court in that case concluded that the point here involved was not necessary for the decision of that case, yet the views expressed show clearly our opinion that the evidence taken in the probate court should be classed and treated as a mere admission, and that the same rules of evidence would apply to such admission as would apply to any admission made out of court. This view we believe to be upheld by the great weight of authority. 16 Cyc. 1040, 1041, and cases therein cited; Morris v. Jamieson, 205 Ill. 87, 68 N. E. 742. This court held in Miller v. People, 216 Ill. 309, 74 N. E. 743, that the admissions and statements made by a defendant in a former trial are competent to be received as evidence against him to the same extent as if these statements and admissions had been made by him out of court, notwithstanding the fact that he did not testify in the last trial where such admissions were proved, and that thereby attention might be called to the fact, indirectly, that he did not so testify. By introducing Sexton's testimony taken at the hearing on the citation in the probate court he was not thereby called as a witness by the adverse party, and his incompetency as a witness, outside of the admissions made on this examination, was not affected. He was called as a witness by appellee on the hearing below and asked one or two questions as to the possession of the bonds. This appellee clearly had a right to do without making him a witness as to all questions, under the first exception to said section 2, which states that in any such action, suit or proceeding a party or interested person may testify to facts occurring after the death of such deceased person, etc. It is claimed by appellant that the court erred in excluding questions asked of appellee with reference to certain writings of the testator which it was insisted the testator's housekeeper, Miss Margaret McNamara, had in her possession and had shown to appellee and P. J. Sexton. This writing purported to be a memorandum of certain property of Dr. Butler's, made by him.

Miss McNamara, it seems, had testified at a former trial, but at the time of this trial was out of the state. Appellant's counsel infer, by some of their questions addressed to appellee, that she was so absent

at the suggestion of appellee, but this was denied. The original memorandum claimed to be in the handwriting of Dr. Butler was not produced. It was intimated by counsel that such original memorandum was in the possession of counsel for the appellee, the late Judge Moran, and that he ought to produce it. When this question was raised the trial judge said: "The only question now is whether the conditions have ripened to that point where the court should exercise what power he has on that topic. I do not think it has arisen yet where I should make any compulsory order." Mr Hynes, who was acting as counsel for appellant, said: "I see some force in that, but I think I ought to have it now for the purpose of cross-examining this witness." Counsel for appellant did not further urge the point that this original memorandum, claimed to be in the handwriting of Dr. Butler, should be produced, so far as we can find from the arguments or record. Clearly, therefore, under all authorities, appellant was not entitled to ask any question of the witness Egan, or any other witness, with reference to this original memorandum.

It is further contended by appellant that a copy of this memorandum or writing was made by P. J. Sexton, and that this copy was shown to appellee, who read it over at one of their interviews. When on the witness stand appellee was shown what was claimed to be the same copy that had been shown him by Sexton, and was asked if it was not the same. On objection, the court refused to allow him to answer. Sexton was examined as to this same paper, and testified it was the same as he had shown appellee in an interview out of court. Appellee then again offered this copy in evidence, and the court refused to permit it to be introduced, although it is inserted in full at that point in the record. Among other authorities in support of this contention is cited Wigmore on Evidence (volume 3, § 2104), which reads: "Where a writing offered refers to another writing, the latter should also be put in at the same time, provided the reference is such as to make it probable that the latter is requisite to a full understanding of the effect of the former. The same principle would apply to another writing not expressly referred to, but necessary, by the nature of the documents, to a proper understanding of the one offered. Much, therefore, will depend upon the circumstances of each case and the character of each document, and no fixed rule can fairly be laid down. The trial court's discretion should control." Under this authority the trial court's discretion should govern, and there was therefore no error in his excluding it. Very able counsel were engaged on both sides of this case from its inception. It is evident from this record that they understood the questions at issue very clearly from the first, and the learned judge who heard the case below,

in our judgment, ruled with great care on all these questions. He admitted proof as to the contents of a letter which was partly written by Sexton to witness McHugh, because it had been shown that it had been read by McHugh and commented on in a conversation with Sexton and that the letter was lost. It is quite possible, by the same reasoning which admitted the contents of this letter, the court might have admitted the copy of the memorandum as a part of a conversation between appellee Egan and Sexton. The trial judge heard the case without a jury. In our judgment this memorandum, whether introduced or excluded, was of so slight weight on the question at issue that it could not in any way, with or without a jury, have affected a decision as to whether the bonds and note in question were a gift to Sexton. Indeed, if the case had been tried before a jury and the memorandum there introduced, it would have been entirely proper for the court to have instructed the jury that it was only permitted to be introduced because it was a part of a conversation between appellee and Sexton, and not because it tended to prove or disprove the gift in question. This is in entire harmony with the ruling in Carter v. Carter, 152 Ill. 434, 28 N. E. 948, 38 N. E. 669, cited by appellant on this point. It was there held that certain unsigned letters could be read only because they were part of the res gestæ, but could not be read to prove the main question at issue in the case. We do not think it was error to exclude the copy of the memorandum in question.

We find no reversible error in the record. The judgment of the Appellate Court will accordingly be affirmed.

In an action for death from an excessive electric current passing from an incandescent lamp wire, an expert electrician was asked a hypothetical question: Suppose that a primary two-wire circuit carrying about 2.200 volts alternating current, ran to a general electric 10kilowatt transformer on a pole; that from the transformer a secondary circuit, supposed to be carrying 104 volts, supplying incandescent lights, ran back alongside the primary wires and from 10 to 12 inches distant from them to a pole, and thence to a car barn; that from and in

side the car barn an insulated flexible wire ran back to an incandescent electric light, and a man who was standing on cinders grasped hold of the insulated wire and received a shock, which resulted in his death-and was requested to state his opinion how he might have received the shock. Held, that such question was not a usurpation by the witness of the functions of the jury, in that it called for an opinion on the question to be decided by the jury.

3. APPEAL-ADMISSION OF EVIDENCE-PREJU

DICE.

In an action for death from an excessive electric current passing through an incandescent lamp wire, defendants were not prejudice, in the absence of evidence showing the existence of defects in its transformer, and that primary wires came in contact with secondary wires, by testimony that the excessive voltage might have gotten on its secondary wires by reason of such defects, where the jury, in order to find that there was any defect in the transformer, or that any wires crossed, must necessarily have found first that there was a dangerous current on the secondary wires, of which defendants ought to have had knowledge.

4. MASTER AND SERVANT-DEATH OF SERVANT -EVIDENCE-ADMISSIBILITY.

Where an employé was killed by an excessive electric current in an incandescent lamp wire, evidence that a witness received a shock from the secondary wires leading into the building where deceased was killed in the morning, after the primary wires had been detached from the transformer, was inadmissible, as it would not have furnished any excuse for failing to prevent the dangerous current from entering the building, or for failing to warn decedent of its presence.

5. SAME.

In an action for death of an employé from an excessive electric current in an incandescent lamp wire, where defendant testified that after the accident he examined the wires, it was proper to exclude his answer as to the condition in which he found the wires, as it did not show any exercise of care to avoid the accident, nor rebut any evidence showing that defendant could by reasonable diligence have known of the presence of the dangerous current.

6. DEATH-ACTIONS FOR CAUSING-DAMAGESLOSS OF INSTRUCTION TO CHILDREN.

The jury, in an action for death of a parent, may consider, on the question of damages, loss of instruction and moral training, if any, to the minor children by reason of the death of their father, where the evidence tends to show such loss.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Damages, §§ 108, 115, 119.]

Appeal from Appellate Court, Second District.

Action by Maria Enzler, administratrix of the estate of John Anton Enzler, deceased, against A. P. Goddard and others. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendants appeal. Affirmed.

W. N. Cronkrite (R. J. Carnahan, of counsel), for appellants. Douglas Pattison, for appellee.

SCOTT, C. J. This was an action of case brought in the circuit court of Stephenson .county by Maria Enzler, as administratrix of the estate of John Anton Enzler, deceased, against A. P. Goddard and A. J. Goddard. the appellants, to recover damages occasioned to the widow and minor children of said

John Anton Enzler by reason of his death. The jury returned a verdict for $3,500 in favor of the administratrix. After overruling a motion for a new trial and a motion in arrest of judgment, the court entered judgment upon the verdict. Appellants appealed to the Appellate Court for the Second District, where the judgment of the circuit court was affirmed. A further appeal has been prosecuted by appellants to this court.

The evidence tends to establish the following facts: On November 14, 1902, appellants were operating an electric light plant and an electric street railway system in the city of Freeport. In connection with their railway system they used a large brick building as a street car barn, in which cars were kept, cleaned, and repaired. This barn had a flat roof covered with a pitch and gravel composition, and a floor of cinders packed about 8 or 10 inches deep. It was lighted with electricity from the electric light plant. Some of the wires used in the electric light plant, known as "primary wires," carried from 2,000 to 2,280 volts of electricity and were exceedingly dangerous. Other wires, known as "secondary wires," when in proper and ordinary condition carried only 104 volts and were harmless. The primary wires were only used to transmit the high voltage from the generator to transformers, where the high and dangerous currents were reduced to low and harmless currents of 104 volts, which were transmitted from the transthe transformer, over the secondary wires, to and into buildings for lighting purposes.

A vinegar factory was located back and immediately east of the car barn. North, and across the street from the car barn, was a pole bearing a transformer. Two primary wires extended from a pole in the car barn yard over the roof of the barn to this transformer and carried the dangerous current of electricity to the transformer. Several sets of secondary wires were supplied with electricity from the transformer; each set consisting of two wires. One of these sets of wires extended from the transformer, parallel with the two primary wires, over the flat roof of the car barn, and furnished the electricity for lighting the car barn. Another set of secondary wires from the same transformer furnished electricity to the vinegar factory for lighting purposes. At about 9 o'clock in the morning of November 14, 1902, an employé of the vinegar factory, while holding in his hand an electric cord in the cellar of that factory, received a shock from the cord which rendered him unconscious and seriously burned and injured his hand. This electric cord connected with the secondary wires which were supplied with electricity from the transformer across the street from the car barn, and was supposed to carry only a harmless current of 104 volts, the same as the secondary wires. F. W. Siecke, the proprietor of the vinegar

factory, telephoned to the office of appellants and informed the person who answered the call that one of his employés had been injured by the electric cord, and that there was apparently a stronger current on the wire than there should be. He was told that the matter would be attended to. Siecke testified that his recollection was that he talked to A. J. Goddard over the telephone. When Goddard was called as a witness on behalf of appellants, he testified that he did not receive any such message from Siecke on that day, but that he was told a few days later that such a message had been sent. About 3 o'clock in the afternoon of the same day another employé of the vinegar factory was rendered unconscious, and his hand severely burned while holding another electric cord in the cellar of the vinegar factory. Shortly afterwards Seicke communicated with one Parker, who was engaged in the electrical wiring business in the city of Freeport, and Parker sent an electrician named Baumgartner to the vinegar factory to discover and remedy the trouble with the wires. Baumgartner found the electric cord which had caused the injury to one of the employés above referred to in defective condition and replaced it with a new one. He then took hold of the new cord and received a severe shock, which knocked him down. The cord was taken from him immediately and before he had received any serious injury. Baumgartner then went to appellants' power house, where he found A. J. Goddard at about 5:15 o'clock in the afternoon, and told him about the shock he had received at the vinegar factory. Goddard requested him to return immediately and throw the switch which was located at the entrance of the secondary wires into the factory. By throwing this switch the current of electricity passing over the secondary wires to the building would be prevented from entering the building. A similar switch was located just outside of every building into which electric wires extended. Baumgartner did requested. About 6 o'clock in the afternoon A. J. Goddard and the superintendent of the electric light plant went to the vinegar factory, which they found locked. It was almost dark. From the ground they made an examination of the primary and secondary wires in that vicinity, but discovered nothing out of order. 'The car barn, as hereinbefore stated, was lighted with electricity supplied from the same transformer as was the vinegar factory. One of the incandescent electric lamps or bulbs which furnished light for the car barn was attached to one end of an electric cord; the other end of the cord being connected with secondary wires coming from the transformer above mentioned over the roof and into the car barn. This cord was an ordinary electric cord, consisting of small wires covered with insulating material; the electricity being transmitted over the wires

as

in the cord to the lamp or bulb. The cord was about 25 feet in length, was flexible, and permitted the lamp to be taken to any part of the barn within a radius of 25 feet from the point where it connected with the other wires. When not in use, the bulb was kept hanging upon the wall of the barn. John Anton Enzler, on November 14, 1902, was, and for some time prior thereto had been, in the employ of appellants engaged in night work at the car barn, working from 6 o'clock p. m. to 6 o'clock a. m., and it was frequently necessary for him, in the performance of his duties, to use the electric lamp attached to the cord. In doing so it was customary to grasp the cord at a point near the bulb and carry it in that manner. At 9 o'clock in the evening of November 14, 1902, being the same day the employés of the vinegar factory were injured, one of appellants' employés, upon entering the car barn, found Enzler lying upon his back on the floor of the barn near the place where the electric bulb was kept hanging on the wall, grasping said cord near the bulb in his right hand, and the cord emitting electric sparks at the place where Enzler was grasping it. Enzler's hand had been severely burned by the electric cord, and he was then either dead or in a dying condition. When physicians arrived he was dead, and their testimony in this case shows that his death was caused by the electric shock.

The declaration in the case contained nine counts. Some of the counts alleged the existence of particular defects, and the charges of negligence in those counts were based upon such defects. It was thus alleged that the insulation around the wires in the electric cord which Enzler grasped was worn and defective; that the insulation on the primary and secondary wires passing over the car barn was defective; that such wires had been constructed and maintained in too close proximity to each other and had become crossed; that the transformer which supplied electricity for the car barn was defective, and permitted a high and dangerous current to pass from the primary wires entering the transformer to the secondary wires issuing from the transformer; and that a defective fuse plug or block had been installed and maintained at the entrance of the secondary wires into the car barn. One count charged negligence, generally, in permitting the machinery, dynamos, wires, and appliances to remain in bad and unsafe repair and condition after notice of such condition, without specifying any defect in any particular part of the system, and another count charged negligence in failing to warn Enzler of the dangerous current of electricity passing through the cord. Appellants filed the general issue. A large part of the evidence in the case consists of testimony given by expert electricians. Many facts of great assistance to the jury were established by

such witnesses. It was thus shown that 104. volts of electricity would not kill nor burn. a human being, and that it requires at least 500 volts to cause death. It was further. shown that if, by any means, a high current should have been communicated to one of the wires issuing from the transformer, it would have extended to and over all secondary wires connected with that transformer. It therefore appeared, without contradiction, that at various times on November 14, 1902, and as early as 9 o'clock in the morning of that day, the secondary wires entering the car barn, and the electric cord which Enzler was required to use at night, were transmitting an unusual and dangerous current of electricity. It is apparent that these facts, together with proof that appellants knew, or could by exercising ordinary care. have known, of the existence of this unusual current on the secondary wires, would have imposed upon appellants the duty of preventing such current from entering the car barn or the duty of warning Enzler that such current was passing through the electric cord, and that for a breach of one or the other of such duties, after the lapse of such. time as, under the under the circumstances, would have been reasonable, appellants would be liable for the death of Enzler. It was shown: that shortly after 9 o'clock in the morning Siecke telephoned to the office of appellants that the secondary wires were transmitting an unusual current of electricity; that one of the appellants was informed of the same fact at 5:15 o'clock in the afternoon by Baumgartner. And it further appeared that there was located in the dynamo room of appellants' plant an instrument, known as a "ground detector," which should have indicated a ground on the wires at each of the times the employés were injured at the vinegar factory and at the time Baumgartner received the shock. There was therefore evidence from which the jury might reasonably conclude that appellants had notice of the existence of the dangerous current on the secondary wires a sufficient length of time before Enzler was killed to have prevented such current from entering the car barn at the time when it became necessary for Enzler to handle the electric cord, or had such notice a sufficient length of time before the accident to have warned Enzler of the presence of the unusual current passing through the cord.

Appellants first complain of the action of the court in permitting an expert electrician to answer the following question propounded by appellee: "Q. Suppose that a primary two-wire circuit, carrying about 2,200 volts alternating current, ran to a general electric ten-kilowatt transformer on a pole; that from the transformer a secondary circuit, supposed to be carrying 104 volts, supplying incandescent lights, ran back alongside of the primary wires and from 10 to 12 inches