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all matters in controversy, and to adjust lant has two theories, viz.: First, she conand settle every and all claims, real or imag tends that the conveyance was in fraud of ináry, of the said parties of the second part her rights as the prospective wife of John (appellant and her husband), or either of them, Mackey, and as to her was therefore void; to any real estate held by said Anna Davey, and, second, she urges that the conveyance provides that in consideration of the giving was merely in trust for John Mackey, and of a quitclaim deed to the real estate in ques that he remained the equitable owner of the tion by John Mackey and Annie Mackey, land after making the deed to Anna Davey. his wife, to Anna Davey, releasing and quit She claims that, in either event, the conveyclaiming all their right, title, and interest in ance did not prevent her dower and homeand to such property, and in consideration stead from attaching to the land upon the of the dismissal of the aforesaid suit brought death of John Mackey. As to the deed of hy Annie Mackey, John Mackey shall have May 26, 1899, executed by herself and husthe right to collect and use the rents and band, appellant contends that the title was to profits issuing from said real estate, “title of pass to Anna Davey only upon the performwhich is in Anna Davey," during his natural ance of certain conditions precedent which life, and, in case of his death prior to the are said to be contained in the written agreedeath of his wife, “then said parties of the ment executed by herself and husband and by first part [Anna Davey and her husband] Anna Davey and husband at the time of the further covenant and bind themselves, their delivery of the last-mentioned deed and as heirs, executors, assigns and administrators, a part of the same transaction; that neither to pay to said Annie Mackey the sum of four Anna Davey nor her grantees performed hundred ($400) dollars in cash within sixty those conditions; and that therefore no title days after the death of the said John Mack passed to Anna Davey by that deed. ey, should said Annie Mackey survive him. In the view we take of this case it is And all right, interest, title or claim of said not necessary to determine whether the Annie Mackey in and to said property shall deed of June 4, 1898, was void or voidable cease upon the payment of said four hun. as to appellant, or whether that conveydred ($400) dollars; and all right, title or ance was merely in trust for John Mackinterest of said John Mackey, his heirs, ex ey as we consider such controversies ecutors or administrators or assigns, in and settled by the agreement made between to the rents, issues and profits of said prop all the parties on May 26, 1899. Considererty shall cease and terminate with the life ing that agreement as a part of the deed of said John Mackey. Said Anna Davey which was executed and delivered by apretaining full and clear title to said de pellant and her husband to Anna Davey on scribed property, and giving and granting May 26, 1899, we are unable to agree with only to said John Mackey, by virtue of this appellant that any of the provisions of the agreement and for the considerations here. agreement constitute conditions precedent intofore named, the rents and profits of said to the vesting of title in Anna Davey. It property during the term of his natural life." is not disputed that John Mackey was peretc. Simultaneously with the execution of mitted to receive the rents and profits from this agreement, John Mackey and Annie the premises up to the time of his death, Mackey executed and delivered to Anna which occurred on February 10, 1902. The Davey a quitclaim deed, which, for the con only provision of the agreement which was sideration of $25, purported to convey ab not complied with by Anna Davey was that solutely to the grantee all interest of said requiring her to pay to appellant $400 withgrantors in the real estate in controversy in 60 days after the death of her husband, and contained a release and waiver of the and the failure to pay that amount within right of homestead. Thereafter, and sub the time specified is the breach of the alsequent to the dismissal of the suit for sep leged condition precedent which appellant arate maintenance, Annie Mackey and John claims prevented the vesting of title in Mackey were divorced, but were remarried | Anna Davey. The words which create the shortly before his death.

obligation on the part of Anna Davey, when In the case at bar appellant proved, and taken by themselves, merely amount to a the master found, that at the time of the covenant on her part to pay $400, which is execution and delivery of the deed of June 4, to become due 60 days after the death of 1898, by John Mackey to Anna Davey, John John Mackey. Appellant insists, however, Mackey was engaged to marry appellant; that the clause, “and all right, interest, that that conveyance was made for a mere title or claim of said Annie Mackey in and to nominal consideration, without the knowledge said property shall cease upon the payment of of appellant, who, relying upon the owner said four hundred ($400) dollars," which ship of said property by John Mackey, had follows the words imposing the obligation, theretofore agreed to become his wife, and shows an intention of the parties to make that appellant did not learn of the convey the vesting of title in Anna Davey dependance of the property to Anna Davey until ent upon the payment of said amount to after her marriage to John Mackey. In re appellant within the time specified in the gard to the deed of June 4, 1898, the appel agreement. In our judgment the words last

above quoted are wholly inadequate to ex 1905, conveyed an undivided one-fourth press any such intention. What right, in thereof to Michael S. Kerwin, the appellee. terest, title, or claim appellant retained Both of the last-named persons had knowlin the property after the settlement and edge of the written agreement above menagreement had been made and reduced to tioned. After receiving his deed to the writing, and after the execution and deliv premises, and on October 24, 1904, James ery of a quitclaim deed to Anna Davey, is not J. Mackey, who had been attempting to disclosed in express terms by either of those obtain possession of the premises, tendered instruments, and, in the absence of some to appellant $422, being the amount desigprovision clearly showing an intention on nated in the written agreement to be paid the part of the grantors to make the vest to appellant, and interest thereon. This tening of title dependent upon the payment

der was refused by appellant. The greater of $400 within the time specified, we can part of the rents, which the court found not say that the right, interest, title, or had satisfied the amount due appellant unclaim which was to cease upon the pay- | der the agreement, was received by her prior ment of the money was all the right, title, to the making of this tender. She contends and interest which appellant would have had that the tender was a conclusive admission in the property if the deed of June 4, 1898, upon the part of the then owner of the and the deed and agreement of May 26, premises that the sum of $422 was due 1899, had never been made. Moreover, other her at that time, and that in stating the acexpressions are found in the agreement count the master should have commenced which indicate an intention on the part with a credit of $422 in her favor and of appellant and her husband to acknowl- should have charged her only with the rents edge the validity of the deed of June 4, received by her since October 24, 1904, the 1898. In describing the land from which date of making the tender. The tender was John Mackey is to receive the rents and not mentioned or relied upon by appellee profits during his lifetime, it refers to the in any of the pleadings filed by him in this land in question, "title of which is in Anna cause, and James J. Mackey, his co-tenant, Davey,” and in another part of the agree made no reference to it in the answer filed ment is the following: “Said Anna Davey | by him. Neither was any amount tendered retaining full and clear title to said describ into court for appellant by either of these ed property." These expressions, contained parties. Authorities are cited, among which in an instrument signed by appellant at are Sweetland v. Tuthill, 54 Ill. 215, and the time of the settlement of her difficulties Monroe v. Chaldeck, 78 Ill. 429, which hold with her husband and of her alleged prop that where one pleads tender in a suit erty rights with Anna Davey, are wholly against him for the recovery of money, or inconsistent with the claim now made by

where he tenders into court a sum of monher that the title was not to vest unless ey for another, such plea or tender is, in $400 should be paid to her within 60 days the suit or proceeding in which the plea after the death of her husband. Whether is filed or tender made, a conclusive admisthe words relied upon by appellant as cre

sion that the amount stated in the plea or ating a condition precedent, when taken in the sum tendered into court is then due, and connection with the words imposing the he is not permitted to prove the contrary. obligation to pay the sum of money to ap Where, however, a tender has been made pellant, should be construed to make such before the trial, but the tender is not repayment a condition subsequent, or whether lied upon in the pleadings of the party who they should be taken to reserve a lien upon made it, nor the money brought into court, the property for the payment of the money, we think the law is as stated in Hunt is unnecessary to determine, as appellant has on Tender, $ 400, where it is said: "Such received, since the death of John Mackey,

tender is an admission of liability, but it is a larger net sum from the rents and profits n

not conclusive. Its weight is to be considerissuing out of the premises than the amount ed by the court or jury over against a subspecified in the agreement to be paid to her, sequent denial of all liability or an assertion and the receipt of such sum has satisfied of a liability for a less sum than tendered. appellant's claim, whether the provision of The defendant is not precluded from statthe agreement be a covenant, a condition ing the reasons or object in making the subsequent, or an equitable mortgage or tender; that it was his desire to close lien, although it was not received within the transaction and avoid

and avoid litigation, or the time specified in the agreement. The that, at the time, he thought the tender deed of May 26, 1899, contained a release was necessary to save certain rights, or that and waiver of the right of homestead, and it was made under the mistaken belief it therefore follows that appellant is not that the sum was due.” This statement of entitled to homestead or dower in the prem the law is supported by the case of Ashuelot ises sought to be partitioned.

V. Cheshire, 60 N. HI. 356. On May 28, 1903, Anna Davey and her We are of opinion that the master prophusband conveyed the real estate in question erly charged appellant with the net rents to James J. Mackey, who, on February 21, received by her from the premises in con

troversy from the death of her husband, 7. DAMAGES-PERSONAL INJURIES-EARNING which were in excess of the amount due

CAPACITY-EVIDENCE.

Plaintiff's thumb and little finger were torn her from Anna Davey, and that the errors

off and the hand so injured and lacerated as assigned by appellant in this court are with the result of defendant's negligence that it was out merit.

almost useless. Plaintiff was a machinist, and The decree of the circuit court will be

the year prior to his injury had earned $900

at his trade, but had been unable to work at his affirmed.

trade since the injury, and his capacity to perDecree afirmed.

form any kind of labor had been permanently impaired. Held, that such facts were sufficient

to justify a recovery for depreciated capacity (222 Ill. 364.)

to earn money in the future.

[Ed. Note.-For cases in point, see vol. 15, CHICAGO CONSOLIDATED TRACTION

Cent. Dig. Damages, & 509.]
CO. V. SCHRITTER.

8. CARRIERS-INJURIES TO PASSENGERS-NEG(Supreme Court of Illinois. Oct. 23, 1906.) LIGENCE OF MOTORMAN-INSTRUCTIONS.

Where, in an action for injuries to a p.181. CARRIERS-STREET RAILROADS-INJURIES TO

senger on a street car, it was a question for PASSENGER - CONTRIBUTORY NEGLIGENCE

the jury whether the motorman was negligent POSITION-STANDING ON STEP.

in failing to guard against collision with a Where a street car on which plaintiff was

wagon, though it was conceded that after the riding at the time of his injury was so crowded

wagon left the track it halted, swerved, or even that plaintiff could not secure a safer place than

backed a few inches, an instruction that, if, the step on which to ride, whether plaintiff was

after the wagon had left the track a sufficient guilty of contributory negligence in riding on distance to permit the car to pass in safety, and the step was for the jury.

after the forward end of the car had passed [Ed. Note.--For cases in point, see vol. 9, the rear of the wagon, without notice to those Cent. Dig. Carriers, § 1379.]

in charge of the car, the horse suddenly backed 2. APPEAL - INTERMEDIATE APPEAL - QUES the wagon so that it came in contact with tho TIONS OF FACT-CONCLUSIVENESS.

side of the car and plaintiff was thereby inIn an action for injuries to a passenger on

jured, the jury should find defendant not guilty, a street car, whether plaintiff could have secured was properly refused. a safer place to ride than on the step, and was 9. TRIAL-INSTRUCTIONS-DIRECTION OF VERtherefore guilty of contributory negligence in DICT. riding there, was a controverted question of fact, Where an instruction directs a particular the determination of which by the Appellate verdict if the jury finds certain facts and conCourt was conclusive on a further appeal to the ditions, the instructions must embrace all the Supreme Court.

facts and conditions essential to such verdict. [Ed. Note.-For cases in point. see vol. 3, [Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Appeal and Error, $ 4322.]

Cent. Dig. Trial, $$ 534-538.] 3. CARRIERS INJURY TO PASSENGERS-CARE 10. CARRIERS-INJURIES TO PASSENGERS-ASREQUIRED.

SUMED RISK. It is the duty of a street railroad company, The law of assumed risk is inapplicable to as a matter of law, to use the highest degree of an action for injuries to a passenger on a street care and caution consistent with the practical car caused by a collision between the car and a operation of the road, to provide for the safety vehicle. and security of passengers while being transported.

Appeal from Appellate Court, First Dis(Ed. Note.-For cases in point, see vol. 9,

trict. Cent. Dig. Carriers, § 1089.}

Action by Joseph Schritter against the 4. EVIDENCETEIGIIT AND SUFIICIENCY. Chicago Consolidated Traction Company.

In an action for injuries to a passenger, From a judgment for plaintiff, affirmed by plaintiff is only bound to prove his case by preponderance of the evidence, and not beyond a

the Appellate Court, defendant appeals. Af

firmed. reasonable doubt.

(Ed. Note.-For cases in point, see vol. 20, John A. Rose and Albert M. Cross (W. W. Cent. Dig. Evidence, $8 2450-2452.]

Gurley, of counsel), for appellant. Charles 5. DAMAGES—MENTAL SUFFERING.

Lane, for appellee. A passenger who suffered bodily injury as the result of an accident for which the carrier was liable, was entitled to recover for such FARMER, J. This is an appeal from a mental suffering as was the natural and inevi

judgment of the Appellate Court for the table result of his injuries.

First District affirming a judgment of the [Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Damages, $ 100.)

circuit court in favor of appellee for $9,000 6. TRIAL-INSTRUCTIONS-DAMAGES-APPLICA

for damages sustained as the result of an BILITY TO ISSUES.

injury received while a passenger on one Where, in an action for injuries to a pas of appellant's cars. senger, a declaration alleged that plaintiff had

Near dark on the evening of October 18, been obliged to expend divers large sums of money, amounting, to wit, to the sum of $1,000, 1901, appellee boarded an electric car of apand had obligated himself to pay out large sums pellant, called an Easton avenue car, at Milof money, to wit, $1,000, an instruction author

waukee avenue and Lake street, which was izing consideration of any necessary expense

some distance from Easton avenue. He took plaintiff may have been put to “or may have obligated himself to pay," in and about plain position and rode on the step at the front tiff's treatment for his injuries, was not objec end of the motor car. The step set in the tionable as beyond the issues, in so far as it

platform so that it did not extend beyond authorized consideration of expenses plaintiff had obligated himself to pay.

the side or the body of the car. Appellee (Ed. Note.--For cases in point, see vol 46, paid his fare while standing in that position, Cent. Dig. Trial, 88 587-595.]

holding on to the grab iron at the side of

the front end of the car. The grab iron was 3 to 312 feet long, set in sockets at each end, and extended out from the body of the car 194 inches. When the car reached Easton avenue its course was then north, and as appellee stood on the step holding the grab iron with his right hand he faced east. As the train, which was composed of the motor car on which appellee was riding and a trailer, proceeded north, it approached and overtook a man driving one horse bitched to a heavy truck wagon of the Northwestern Yeast Company. The wagon was being driven along the street car tracks, and the motorman, as he came near it, sounded the gong to warn the driver to leave the track. The wagon, at the time the street car overtook it, was opposite some vehicles standing in the street between the street car track and the sidewalk on the right hand or east side, so that the driver had to pass them before he could turn his horse and wagon off the track. After passing these obstructions the driver turned his horse off the track, and the wheels of the wagon, after following the tracks a short distance, left the tracks also.

The wagon was a platform wagon, with upright stakes along its sides and rear. To these stakes, or some of them, iron rope hooks were attached about 15 inches above the platform and extending outward. When the wheels of the wagon left the street car tracks appellant's motorman turned on the power to give his train more speed and pass the horse and wagon. In attempting to pass them an Iron rope book on a rear stake in the wagon caught the grab iron appellee was holding to, tore it off the car and seriously and permanently injured his hand and arm.

It was first contended by appellant that the verdict was not supported by the evidence. This contention is based chiefly on the fact that appellee was riding on the steps of the car at the time he was injured. It is not and could not reasonably be claimed that this constitutes negligence under all circumstances or as a matter of law. Whether such conduct constitutes negligence or not is & question of fact for determination by the jury. Alton Light & Traction Co. v. Oller, 217 Ill. 15, 75 N. E. 419; North Chicago Street Railroad Co. v. Polkey, 203 Ill. 225, 67 N. E. 793; 3 Thompson on Negligence, 88 2955, 2957. But it is argued that under the circumstances of the case, as shown by the evidence, appellee could have occupied a safer place on the platform, and therefore was guilty of contributory negligence in not doing so. There was evidence tending to show that the car and platform were so crowded with passengers that appellee could not secure a safer place to ride. This was a controverted question of fact, and the judg. ment of the Appellate Court on that question is binding upon us. Sconce v. Henderson, 102 Ill. 376; Thomas Pressed Brick Co.

v. Herter, 162 Ill. 46, 44 N. E: 380; Henry v. Stewart, 185 Ill. 418, 57 N. E. 190; Lusk v. Throop, 189 Ill. 127, 59 N. E. 529.

It is also urged that the court erred in giv. ing appellee's first, third, and seventh instructions, and in refusing the eighth and ninth instructions asked by appellant. Appellee's first instruction was as follows: "The court instructs the jury, as matter of law, tbat it is the duty of a street railroad company to use the highest degree of care and caution, consistent with the practical operation of the road, to provide for the safety and security of passengers while being transported." This instruction has been approved in West Chicago Street Railroad Co. v. Johnson, 180 Ill. 285, 54 N. E. 334, and West Chicago Street Railroad Co. V. Kromshinsky, 185 Ill. 92, 56 N. E. 1110, and is not in conflict with North Chicago Street Railroad Co. v. Polkey, supra.

Appellee's third instruction told the jury he was not bound to prove his case beyond a reasonable doubt, but was only required to prove it by a preponderance of the evidence. No reason is given why this is not a good instruction, and we know of none that could be given.

Appellee's seventh instruction was on the measure of damages, and told the jury, among other elements mentioned, that they might consider “to what extent, if any, he may have endured physical and mental surfering as a natural and inevitable result of such injuries." The criticism made of this portion of the instruction is that it authorizes damages for mental suffering. This has been approved in a long line of cases in this state where there had been a physical injury inflicted. In Indianapolis & St. Louis Railroad Co. v. Stables, 62 Ill. 313, it was said (page 320): “And a reference to adjudged cases shows the current of authority is the other way. In fact, we cannot readily understand how there can be pain without mental suffering. It is a mental emotion arising from a physical injury. It is the mind that either feels or takes cognizance of plysical pain, and hence there is mental anguish or suffering inseparable from bodily injury, unless the mind is overpowered and consciousness is destroyed. The mental anguish which would not be proper to be considered is where it is not connected with the bodily injury, but was caused by some mental conception not arising from the physical injury." This has been adhered to in Hannibal & St. Joseph Railroad Co. v. Mar. tin, 111 Ill. 219, Chicago City Railway Co. v. Taylor, 170 III. 49, 48 N. E. 831, Cicero & Proviso Street Railway Co. v. Brown, 193 Ill. 274, 61 N. E. 1093, and many other cases. Braun v. Craven, 175 Ill. 401, 51 N. E. 657, 42 L, R. A. 199, cited by appellant, is not in conflict with these cases. In that case there was no physical injury. The alleged injury complained of resulted from fright. The

same instruction also told the jury they might consider any necessary expense appellee may have been put to “or may have obligated himself to pay," if any were proven, in and about treatment and care of himself on account of his injuries, and what, if any, effect his injuries "will have on him in the future in regard to his power to earn money by his labor." It is asserted the declaration charges appellee had "expended large sums of money" for medical services, and not that he “had become liable” for expenses for treatment, and it is so abstracted. This is the only objection made to that branch of the instruction. The record shows the allegation in the declaration to be that appellee had been obliged to "expend divers large sums of money amounting, to wit, to the sum of $1,000, and had obligated himself to pay out large sums of money, to wit, $1.000." The evidence shows appellee's thumb and little finger were torn off, and the hand so injured and lacerated as to render it almost useless. He was a machinist, and the year before he was injured had earned about $900 working at his trade. It was the right hand that was injured, and he has not been able to work at his trade since his injury, and the proof shows his capacity to perform any kind of labor has been permanently impaired. There was no error in the instruction.

Appellant offered, and the court refused, an instruction in substance to the effect that if the jury believe, from the evidence, that the car and wagon were going in the same direction, and that the team and wagon turned off the track a sufficient distance to allow the car to pass in safety, and that after the forward end of the car had passed the rear end of the wagon, without notice to those in charge of the car the horse suddenly stopped and backed the wagon so that it came in contact with the side of the car, and thereby plaintiff was injured, the jury should find defendant not guilty. One of the theories of the defense was that after leaving the street car tracks a horse and milk wagon crossed in front of the horse drawing the wagon that had just left the tracks and caused that horse to back slightly, thereby bringing the hook in contact with the grab iron on the car—and there was some evidence tending to support this theory. The elements contained in the instruction were proper to be considered by the jury in determining whether the appellant's motorman was guilty of negligence that caused the injury, but as it directed a verdict for defendant it was properly refused. The evidence relied on by appellant shows the wagon could have been but a few inches from the street car track. One of the witnesses testified the horse backed the wagon three inches. It is clear that if the wagon was ever far enough from the track to allow the car to

pass it was by a narrow margin. It was the duty of the motorman to keep a careful watch ahead for obstructions that were in or liable to get in his way. He testified he was behind time and was hugging the wagon closely, putting on and taking off the power, and that when the wagon got clear of the track he turned on the power. The Appellate Court properly said on the subject: "It was also a question for the jury, even if it be conceded that the wagon did halt or swerve or even back a few inches more or less, whether it was or was not negligence for the motorman not to guard against such contingency until the wagon was at least far enough away from the track to make it improbable, at least, that such halting or backing would endanger the passengers on the car."

The instruction as asked practically took this element away from the consideration of the jury. Each party to a suit, it is true, is entitled to have instructions given that will fairly present his theory at the case, but such instructions must contain a correct statement of the law applicable to the evidence. Where an instruction directs a particular verdict if the jury should find certain facts and conditions, the instruction must embrace all the facts and conditions essential to such a verdict. Illinois Iron and Metal Co. v. Weber, 196 Ill. 526, 63 N. E. 1008. Furthermore, appellant had the benefit of the law in other instructions informing the jury as to what their verdict should be if the evidence failed to show appellee's injury was caused by the negligent operation of the car.

safety, and that Appellant's sixteenth instruction told the

jury that if they believed, from the evidence, the injury to the plaintiff was caused by the negligent manner in which the horse and wagon were driven or managed, they should find the defendant not guilty. The seventeenth told the jury that if they believed, from the evidence, plaintiff's injury was th result of an inevitable accident, or that it was caused by the negligence or conduct of those in charge of certain teams and wag. ons and without the negligence of defendant, then they should find the defendant not guilty.

Complaint is also made of the refusal of the court to give the ninth instruction asked by appellant. That instruction was on the law of assumed risk. This was not a case where the doctrine of assumed risk was applicable. If there was anything in the position appellee occupied on the step of the car that would bar a recovery, it was contributory negligence, and on this subject the instructions given on behalf of appellant were full and complete.

Finding no reversible error in this record, the judgment is affirmed.

Judgment affirmed.

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