all matters in controversy, and to adjust and settle every and all claims, real or imaginary, of the said parties of the second part [appellant and her husband], or either of them, to any real estate held by said Anna Davey, provides that in consideration of the giving of a quitclaim deed to the real estate in question by John Mackey and Annie Mackey, his wife, to Anna Davey, releasing and quitclaiming all their right, title, and interest in and to such property, and in consideration of the dismissal of the aforesaid suit brought by Annie Mackey, John Mackey shall have the right to collect and use the rents and profits issuing from said real estate, "title of which is in Anna Davey," during his natural life, and, in case of his death prior to the death of his wife, "then said parties of the first part [Anna Davey and her husband] further covenant and bind themselves, their heirs, executors, assigns and administrators, to pay to said Annie Mackey the sum of four hundred ($400) dollars in cash within sixty days after the death of the said John Mackey, should said Annie Mackey survive him. And all right, interest, title or claim of said Annie Mackey in and to said property shall cease upon the payment of said four hundred ($400) dollars; and all right, title or interest of said John Mackey, his heirs, executors or administrators or assigns, in and to the rents, issues and profits of said property shall cease and terminate with the life of said John Mackey. Said Anna Davey retaining full and clear title to said described property, and giving and granting only to said John Mackey, by virtue of this agreement and for the considerations hereintofore named, the rents and profits of said property during the term of his natural life." etc. Simultaneously with the execution of this agreement, John Mackey and Annie Mackey executed and delivered to Anna Davey a quitclaim deed, which, for the consideration of $25, purported to convey absolutely to the grantee all interest of said grantors in the real estate in controversy and contained a release and waiver of the right of homestead. Thereafter, and subsequent to the dismissal of the suit for separate maintenance, Annie Mackey and John Mackey were divorced, but were remarried shortly before his death.

In the case at bar appellant proved, and the master found, that at the time of the execution and delivery of the deed of June 4, 1898, by John Mackey to Anna Davey, John Mackey was engaged to marry appellant; that that conveyance was made for a mere nominal consideration, without the knowledge of appellant, who, relying upon the ownership of said property by John Mackey, had theretofore agreed to become his wife, and that appellant did not learn of the conveyance of the property to Anna Davey until after her marriage to John Mackey. In regard to the deed of June 4, 1898, the appel

lant has two theories, viz.: First, she contends that the conveyance was in fraud of her rights as the prospective wife of John Mackey, and as to her was therefore void; and, second, she urges that the conveyance was merely in trust for John Mackey, and that he remained the equitable owner of the land after making the deed to Anna Davey. She claims that, in either event, the conveyance did not prevent her dower and homestead from attaching to the land upon the death of John Mackey. As to the deed of May 26, 1899, executed by herself and husband, appellant contends that the title was to pass to Anna Davey only upon the performance of certain conditions precedent which are said to be contained in the written agreement executed by herself and husband and by Anna Davey and husband at the time of the delivery of the last-mentioned deed and as a part of the same transaction; that neither Anna Davey nor her grantees performed those conditions; and that therefore no title passed to Anna Davey by that deed.

In the view we take of this case it is not necessary to determine whether the deed of June 4, 1898, was void or voidable as to appellant, or whether that conveyance was merely in trust for John Mackey as we consider such controversies settled by the agreement made between all the parties on May 26, 1899. Considering that agreement as a part of the deed which was executed and delivered by appellant and her husband to Anna Davey on May 26, 1899, we are unable to agree with appellant that any of the provisions of the agreement constitute conditions precedent to the vesting of title in Anna Davey. It is not disputed that John Mackey was permitted to receive the rents and profits from the premises up to the time of his death, which occurred on February 10, 1902. The only provision of the agreement which was not complied with by Anna Davey was that requiring her to pay to appellant $400 within 60 days after the death of her husband, and the failure to pay that amount within the time specified is the breach of the alleged condition precedent which appellant claims prevented the vesting of title in Anna Davey. The words which create the obligation on the part of Anna Davey, when taken by themselves, merely amount to a covenant on her part to pay $400, which is to become due 60 days after the death of John Mackey. Appellant insists, however, that the clause, "and all right, interest, title or claim of said Annie Mackey in and to said property shall cease upon the payment of said four hundred ($400) dollars," which follows the words imposing the obligation, shows an intention of the parties to make the vesting of title in Anna Davey dependent upon the payment of said amount to appellant within the time specified in the

above quoted are wholly inadequate to express any such intention. What right, interest, title, or claim appellant retained in the property after the settlement and agreement had been made and reduced to writing, and after the execution and delivery of a quitclaim deed to Anna Davey, is not disclosed in express terms by either of those instruments, and, in the absence of some provision clearly showing an intention on the part of the grantors to make the vesting of title dependent upon the payment of $400 within the time specified, we cannot say that the right, interest, title, or claim which was to cease upon the payment of the money was all the right, title, and interest which appellant would have had in the property if the deed of June 4, 1898, and the deed and agreement of May 26, 1899, had never been made. Moreover, other expressions are found in the agreement which indicate an intention on the part of appellant and her husband to acknowledge the validity of the deed of June 4, 1898.

In describing the land from which John Mackey is to receive the rents and profits during his lifetime, it refers to the land in question, "title of which is in Anna Davey," and in another part of the agreement is the following: "Said Anna Davey retaining full and clear title to said described property." These expressions, contained in an instrument signed by appellant at the time of the settlement of her difficulties with her husband and of her alleged property rights with Anna Davey, are wholly inconsistent with the claim now made by her that the title was not to vest unless $400 should be paid to her within 60 days after the death of her husband. Whether the words relied upon by appellant as creating a condition precedent, when taken in connection with the words imposing the the obligation to pay the sum of money to appellant, should be construed to make such payment a condition subsequent, or whether they should be taken to reserve a lien upon the property for the payment of the money, is unnecessary to determine, as appellant has received, since the death of John Mackey, a larger net sum from the rents and profits issuing out of the premises than the amount specified in the agreement to be paid to her, and the receipt of such sum has satisfied appellant's claim, whether the provision of the agreement be a covenant, a condition subsequent, or an equitable mortgage or lien, although it was not received within the time specified in the agreement. The deed of May 26, 1899, contained a release and waiver of the right of homestead, and it therefore follows that appellant is not entitled to homestead or dower in the premises sought to be partitioned.

On May 28, 1903, Anna Davey and her husband conveyed the real estate in question to James J. Mackey, who, on February 21,

1905, conveyed an undivided one-fourth thereof to Michael S. Kerwin, the appellee. Both of the last-named persons had knowledge of the written agreement above mentioned. After receiving his deed to the premises, and on October 24, 1904, James J. Mackey, who had been attempting to obtain possession of the premises, tendered to appellant $422, being the amount designated in the written agreement to be paid to appellant, and interest thereon. This tender was refused by appellant. The greater part of the rents, which the court found had satisfied the amount due appellant under the agreement, was received by her prior to the making of this tender. She contends that the tender was a conclusive admission upon the part of the then owner of the premises that the sum of $422 was due her at that time, and that in stating the account the master should have commenced with a credit of $422 in her favor and should have charged her only with the rents received by her since October 24, 1904, the date of making the tender. The tender was not mentioned or relied upon by appellee in any of the pleadings filed by him in this cause, and James J. Mackey, his co-tenant, made no reference to it in the answer filed by him. Neither was any amount tendered into court for appellant by either of these parties. Authorities are cited, among which are Sweetland v. Tuthill, 54 Ill. 215, and Monroe v. Chaldeck, 78 Ill. 429, which hold that where one pleads tender in a suit against him for the recovery of money, or where he tenders into court a sum of money for another, such plea or tender is, in the suit or proceeding in which the plea is filed or tender made, a conclusive admission that the amount stated in the plea or the sum tendered into court is then due, and he is not permitted to prove the contrary. Where, however, a tender has been made before the trial, but the tender is not relied upon in the pleadings of the party who made it, nor the money brought into court, we think the law is as stated in Hunt on Tender, § 400, where it is said: "Such tender is an admission of liability, but it is not conclusive. Its weight is to be considered by the court or jury over against a subsequent denial of all liability or an assertion of a liability for a less sum than tendered. The defendant is not precluded from stating the reasons or object in making the tender; that it was his desire to close the transaction and avoid litigation, or that, at the time, he thought the tender was necessary to save certain rights, or that it was made under the mistaken belief that the sum was due." This statement of the law is supported by the case of Ashuelot 7. Cheshire, 60 N. HI. 356.

We are of opinion that the master properly charged appellant with the net rents received by her from the premises in con

Where a street car on which plaintiff was riding at the time of his injury was so crowded that plaintiff could not secure a safer place than the step on which to ride, whether plaintiff was guilty of contributory negligence in riding on the step was for the jury.

[Ed. Note. For cases in point, see vol. 9, Cent. Dig. Carriers, § 1379.]

2. APPEAL-INTERMEDIATE APPEAL - QUESTIONS OF FACT-CONCLUSIVENESS.

In an action for injuries to a passenger on a street car, whether plaintiff could have secured a safer place to ride than on the step, and was therefore guilty of contributory negligence in riding there, was a controverted question of fact, the determination of which by the Appellate Court was conclusive on a further appeal to the Supreme Court.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 4522.]

3. CARRIERS-INJURY TO PASSENGERS-CARE

REQUIRED.

It is the duty of a street railroad company, as a matter of law, 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.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, § 1089.]

4. EVIDENCE-WEIGHT AND SUFFICIENCY.

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

[Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 2450-2452.] 5. DAMAGES-MENTAL SUFFERING.

A passenger who suffered bodily injury as the result of an accident for which the carrier was liable, was entitled to recover for such mental suffering as was the natural and inevitable result of his injuries.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Damages, § 100.]

6. TRIAL-INSTRUCTIONS-DAMAGES-APPLICA

BILITY TO ISSUES.

Where, in an action for injuries to a passenger, a declaration alleged that plaintiff 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, an instruction authorizing consideration of any necessary expense plaintiff may have been put to "or may have obligated himself to pay," in and about plaintiff's treatment for his injuries, was not objectionable as beyond the issues, in so far as it authorized consideration of expenses plaintiff had obligated himself to pay.

Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trial, §§ 587-595.]

INJURIES-EARNING

Plaintiff's thumb and little finger were torn off and the hand so injured and lacerated as the result of defendant's negligence that it was almost useless. Plaintiff was a machinist, and the year prior to his injury had earned $900 at his trade, but had been unable to work at his trade since the injury, and his capacity to perform any kind of labor had been permanently impaired. Held, that such facts were sufficient to justify a recovery for depreciated capacity to earn money in the future.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Damages, § 509.]

8. CARRIERS-INJURIES TO PASSENGERS-NEGLIGENCE OF MOTORMAN-INSTRUCTIONS.

Where, in an action for injuries to a passenger on a street car, it was a question for the jury whether the motorman was negligent in failing to guard against collision with a wagon, though it was conceded that after the wagon left the track it halted, swerved, or even backed a few inches, an instruction that, if, after the wagon had left the track a sufficient distance to permit the car to pass in safety, and after the forward end of the car had passed the rear of the wagon, without notice to those in charge of the car, the horse suddenly backed the wagon so that it came in contact with the side of the car and plaintiff was thereby injured, the jury should find defendant not guilty, was properly refused.

9. TRIAL-INSTRUCTIONS-DIRECTION OF VER

DICT.

Where an instruction directs a particular verdict if the jury finds certain facts and conditions, the instructions must embrace all the facts and conditions essential to such verdict.

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, §§ 534-538.]

10. CARRIERS-INJURIES TO PASSENGERS-ASSUMED RISK.

The law of assumed risk is inapplicable to an action for injuries to a passenger on a street car caused by a collision between the car and a vehicle.

Appeal from Appellate Court, First District.

Action by Joseph Schritter against the Chicago Consolidated Traction Company. From a judgment for plaintiff, affirmed by the Appellate Court, defendant appeals. Affirmed.

John A. Rose and Albert M. Cross (W. W. Gurley, of counsel), for appellant. Charles Lane, for appellee.

FARMER, J. This is an appeal from a judgment of the Appellate Court for the First District affirming a judgment of the circuit court in favor of appellee for $9,000 for damages sustained as the result of an injury received while a passenger on one of appellant's cars.

Near dark on the evening of October 18, 1901, appellee boarded an electric car of appellant, called an Easton avenue car, at Milwaukee avenue and Lake street, which was some distance from Easton avenue. He took position and rode on the step at the front end of the motor car. The step set in the platform so that it did not extend beyond the side or the body of the car. Appellee paid his fare while standing in that position, holding on to the grab iron at the side of

the front end of the car. The grab iron was 3 to 3% feet long, set in sockets at each end, and extended out from the body of the car 14 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 hitched 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 hook 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 a 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, $ 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 judgment 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. 448, 57 N. E. 190; Lusk v. Throop, 189 Ill. 127, 59 N. E. 529.

It is also urged that the court erred in giving 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, that 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 suffering 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 physical 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. Martin, 111 Ill. 219, Chicago City Railway Co. v. Taylor, 170 Ill. 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. was no physical injury. complained of resulted

In that case there The alleged injury 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 of 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.

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 the result of an inevitable accident, or that it was caused by the negligence or conduct of those in charge of certain teams and wagons 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.