manage its railroad and passenger stations and grounds that passengers could alight from their trains and depart therefrom in safety, and that the company did not regard its duty in this respect, but permitted a locomotive engine to be run upon a track, forming a part of its line of railroad, paral- | lel with the track upon which the passenger train was, and while the latter train was discharging its passengers. The evidence of the plaintiff below, and of many other witnesses, tended to show that for many years it had been the custom or habit of passengers upon the incoming trains of appellant to alight from the cars at Twenty-Second street on the west side thereof. It was also shown that upon the arrival of trains, including the train in question, the company never gave passengers any notice not to alight on the west side of the train upon Twenty-Second street, which is a public thoroughfare in the city of Chicago, nor warned them in any way (by the erection of barriers on the west side of the platforms of the cars, or by stationing an officer to notify them not to alight on the west side) that there was any danger in doing so. There was also introduced in evidence a rule of the appellant company, made and published for the guidance of its servants, which rule is as follows: "A train approaching a station where a passenger train is receiving or discharging passengers must be stopped before reaching the passenger train." In the present case the evidence tends to show that the passenger train in question had stopped, so that the third car thereof was standing across Twenty-Second street, and that the train which injured appellee, approaching from the north on the west track, did not stop before reaching the passenger train on the east track. Under the circumstances thus detailed, it cannot be said that the act of the appellee in alighting on the west side of the train was in itself, as matter of law, an act of negligence. was for the jury to determine, from all the facts and circumstances, whether or not the appellee was exercising ordinary care, and whether or not the appellant was guilty of negligence in suffering a train to be moving upon its west track at the time stated.

It

When appellee alighted, the relation between himself and appellant was that of passenger and carrier. This relation between a passenger and a railroad company does not cease upon the arrival of a train at the place of the passenger's destination, but the company is still bound to furnish him an opportunity to safely alight from the train. It is its duty not only to exercise a high degree of care while the passenger is upon the train, but also to use the highest degree of care and skill, reasonably practicable, in providing the passenger a safe passage from the train. Railroad Co. v. Hodgson, 18 Colo. 117, 31 Pac. 954; Railroad Co. v. Chancéllor, 60 Ill. App. 525. Bishop, in his work on Noncontract Law (section 1086), says: "The

tracks around the platforms and places for entering and leaving the cars should be made safe, and kept so." In MeDonald v. Railroad Co., 88 Iowa, 345, 55 N. W. 102, in discussing the question as to the right of a passenger to alight from the rear platform of a car, instead of the front platform thereof, it was said that it was a general custom for passengers to leave the cars from both platforms, and that, because of this custom, passengers had the right to presume, until in some way the contrary appeared, that either platform of a car was accessible for egress, and that, if the right was to be restricted in particular cases, it was the duty of the persons in charge of the train to use precautions against such egress, as by locking the door, or placing a person there to give directions. In Railroad Co. v. Kane, 69 Md. 11, 13 Atl. 387, it was held that, where safe and convenient means of going on and off the cars have been provided by the company, it is the duty of the passenger to make use of such means; but it was at the same time held that this was true only when the railroad recognized the means so provided as the only place where passengers would be received and dischar ged, and had so ordered. In that case it was said: "Wherever a railroad company is in the habit of receiving passengers, whether at the station, or some point outside, passengers have a right to assume that such parts of the premises are in safe condition for such purpose. * If the company intended to pro- . hibit passengers from alighting elsewhere than at the platform in front of the station, notice to that effect should have been given." In McKimble v. R. R., 139 Mass. 542, 2 N. E. 97, the supreme court of Massachusetts used the following language: "If a passenger, he would continue to be such while rightfully leaving the train and station. The defendant [railroad company] had made provision only upon one side of the track for passengers to leave the cars, and it was dangerous to leave upon the other side. It was a question for the jury whether it was negligent in the defendant not to have provided some means to prevent passengers from leaving on the wrong side, or to notify them not to do so." In the same case, which came up a second time, and is reported in 141 Mass. 463, 5 N. E. 804. it was contended that the plaintiff's intestate forfeited his rights as a passenger by leaving the train upon the side upon which no provision had been made for passengers to alight; and that, even if there was any inducement or invitation by the company to leave the train, it was merely an invitation or inducement to do so upon the other side thereof. In reference to this contention the court there say: "If the train had reached a point where the passenger might lawfully leave it, as it was clearly dangerous to do so on one side, and no means were provided to prevent passengers from leaving on the

*

wrong side, and no direction was given them not to do so, it was a question for the jury whether reasonable care for the safety of the passengers had been used by the railroad." In that case the court furthermore said: "He would still be a passenger, within the meaning of that word in the statute, if, by reason of defendant's neglect of precautions which it should have taken, the plaintiff's intestate left the cars on the wrong side, and thereby lost his life." In Bridge Co. v. McKinney, 9 Ind. App. 213, 36 N. E. 448, it was held that it was a question for the jury to determine, taking into consideration all the facts and circumstances in connection with the alighting of the passenger, whether such passenger was guilty of contributory negligence in stepping off the train at the time of his injury; and it was there said: "If there had been a closed gate or bar, in position to check or prevent him from stepping off the cars from that side, a different question would be presented." See, also, Hulbert v. Railroad Co., 40 N. Y. 145. The authorities seem to hold that it is competent for the passenger to show a habit or practice as to the mode of alighting from trains under such circumstances as have been here detailed. Evidence tending to show a habit of boarding or alighting from trains elsewhere than at the depot, with the knowledge and consent of the railroad company, is admissible. Railroad Co. v. Kane, supra; Keating v. Railroad Co., 49 N. Y. 673; Nicholson v. Railroad Co., 3 Hurl. & C. 534, 34 Law J. Exch. 84; McGee v. Railway Co., 92 Mo. 208, 4 S. W. 739.

In view of the circumstances thus presented, we think the court committed no error in refusing the instruction above quoted, and leaving it to the jury to determine the question whether the plaintiff exercised ordinary care, and whether the defendant was guilty of such negligence as produced the injury.

It is further assigned as error that the court refused to give instructions numbered 3, 4, 5, 6, and 7 asked by defendant below. We do not think that there was any error in refusing these instructions. There is a general defect in all of them, in that they undertake to tell the jury that certain specified facts constitute negligence. It is for the jury to determine whether the defendant has been guilty of negligence, under all the evidence in the case. It is not the province of the court to tell the jury that certain facts constitute negligence. Pennsylvania Co. v. Frana, 112 Ill. 398; Railroad Co. v. Blumenthal, 160 Ill. 40, 43 N. E. 809; Wald v. Railroad Co., 162 Ill. 545, 44 N. E. 888. Some of these instructions assume that it was the duty of the appellee, when alighting from the train, to look out for engines or cars that might be approaching upon the west track of the company. In this respect the instructions were clearly erroneous. In Pennsylvania Co. v. Frana, supra, it was held that the court properly refused an in

struction which told the jury that if they believed from the evidence that the plaintiff could have discovered the approach of the train, and could have avoided the injury by looking and listening for its approach, he could not recover, and that such instruction virtually took the question of fact as to plaintiff's care or negligence from the jury. Much less can it be said that the failure to look should defeat a recovery under such a state of facts as is here presented. In such a case as this the rule is that a passenger is justified in assuming that the company has, in the exercise of due care, so regulated its trains that the road will be free from interruptions or obstructions when passenger trains stop at the depot to receive and deliver passengers. In leaving the train, the passenger has a right to assume that the company will not expose him to any danger which by the exercise of due care can be avoided, and that the company has done its duty in the matter of providing him safe landing. Hence the general rule which has been applied by some courts in ordinary cases of parties crossing railroad tracks, that they should stop, look, and listen before making the venture, would not apply in a case like the present. Railroad Co. v. Anderson, 72 Md. 519, 20 Atl. 2; Burbridge v. Railroad Co., 36 Mo. App. 669; Railway Co. v. Johnson, 59 Ark. 122, 26 S. W. 593; Franklin v. Motor-Road Co., 85 Cal. 63, 24 Pac. 723. Moreover, these instructions assume that a place had been designated as a place for alighting from the cars. The existence and use of the station at the corner of Archer and Stewart avenues, as one place of alighting, was all the proof there was upon the subject. The instructions asked the court to say, as matter of law, that this station was the only place where a pas senger could justifiably attempt to alight from the cars. They wholly ignore the evidence tending to show the practice which prevailed, of permitting passengers to alight from the cars at Twenty-Second street on the west side of the east track. Railroad Co. v. Kane, supra.

It is contended by the appellant that when the accident occurred the train from which the appellee alighted was in motion. It would seem that the question whether the train was in motion or not would be immaterial in this case, as the injury is not claimed to have arisen by reason of an attempt of appellee to alight from a car in motion. But, however this may be, the jury were requested to answer the following question: "When the plaintiff stepped or jumped off defendant's train, was it in motion?" The answer of the jury to this question was: "It was not in motion." The jury thus found, as matter of fact, that the train was not in motion. In the present case the court gave for the appellant company an instruction which told the jury that, if they believed from the evidence that the passenger

train was in motion at the time appellee stepped off said train, then he was guilty of negligence. Whether this instruction was erroneous or not, it stated the law favorably for the appellant, and therefore it cannot complain.

It is also assigned as error by the appellant that the court refused to admit certain evidence offered by the appellant. The appellant offered to introduce in evidence an entry upon a book, kept by the police at the Twenty-Second Street Police Station, in which it was customary to make a record of accidents that were reported at that office. It was not error to refuse to receive in evidence this entry from the police record. The entry was made in the books from reports made to the desk sergeant in charge at the police station by policemen who had not witnessed the accident, but merely reported what they had heard others say. Such evidence was incompetent, as being mere hearsay. The entry was not a part of the res gestæ, because it was made some time after the accident occurred, and the reports of the accident were made some time after it occurred. That which occurs before or after the act is done is not a part of the res gestæ, although the interval of separation is very brief.

The declaration of a person injured by a railway train, as to the cause of the injury, made after the declarant was removed from the place of injury, is not admissible as a part of the res gestæ. It is a statement as to a past occurrence, and mere hearsay. Montag v. People, 141 Ill. 75, 30 N. E. 337; Railway Co. v. Becker, 128 Ill. 545, 21 N. E. 524.

Some other objections are made to the rulings of the trial court in sustaining objections made to questions asked of some of the witnesses by appellant's counsel on the trial below. After a careful examination of these objections, and of the arguments of counsel in relation thereto, we are satisfied that no material error was committed in this regard by the trial court. Accordingly the judg ment of the appellate court is affirmed. Judgment affirmed.

PHILLIPS, J., dissents..

INTERNATIONAL CEMENT CO. v. BEIFELD.1

(Supreme Court of Illinois. April 21, 1898.) CONTRACTS-ACTION FOR BREACH-CONDITIONS PRECEDENT.

1. A contract provided that, on failure of the contractor to do any of the work required, the other party should, upon the architect's certificate of such neglect, be at liberty to terminate the employment and complete the work himself; his expenses to be audited by the architect, whose certificate should be conclusive. Held, that an action for a breach of the contract, and for expenses incurred for labor and materials furnished thereunder, could not be maintained without the architect's certificate,

1 Rehearing denied June 10, 1898.

unless sufficient excuse for failure to present the same be shown.

2. A building contract provided for liquidated damages on the failure of the builder to comply therewith; the amount of said damages to be determined by certificate of the architect, and to be the excess of expenses incurred in finishing the work, over and above the unpaid balance due. The builder became insolvent. Held, that a staten.ent of claim based wholly on the contract, with a bill of particulars, in which the contract is filed as a part, is an attempt to recover under the contract, and not for damages independent of the contract, so as to excuse the failure to furnish the architect's certificate as required by the contract.

Appeal from appellate court, First district. Morris Beifeld filed a claim against the insolvent estate of Clyde D. Armstrong, who had made a voluntary assignment. The International Cement Company, another creditor of the estate, filed exceptions to his claim. A judgment rendered in favor of claimant was affirmed in the appellate court (67 Ill. App. 110), and the excepting creditor appeals. Reversed.

This is an appeal from a judgment of the county court allowing a claim of $3,272 against the assets in the hands of William Spinks, assignee of Clyde D. Armstrong, in a voluntary assignment proceeding. The judgment of the county court has been affirmed by the appellate court, where it was taken by writ of error. The present appeal is prosecuted from such judgment of affirmance entered by the appellate court. The appellee, Beifeld, filed a claim against the insolvent estate of Armstrong for $5,691.88. Exceptions were filed to the claim by the appellant, the International Cement Company, another creditor of the estate. The county court proceeded to hear the proofs and allegations of the parties, and allowed a trial by jury thereon. The jury considered the case under instructions from the county court, and returned a verdict of $3,272, upon which verdict, after overruling a motion for new trial, judgment was entered. The contest is between appellant and appellee, who are both creditors of the estate. The facts out of which the claim of the appellee arises may be stated as follows: On July 30, 1894, appellee made a contract with Felix & Marston for the construction of a warehouse in the city of Chicago. On August 6, 1894, the insolvent, Armstrong, and the appellee made a contract, by the terms of which Armstrong agreed to do the mason work on said warehouse. Armstrong failed to fulfill his contract according to the terms thereof, and the claim of appellee is based upon said contract. The statement of appellee's claim, as presented under oath to the assignee, sets forth that the contract price for the work, including labor and materials, was $14,000.00; that the work was to be completed by October 1, 1894, and Armstrong to pay $20 a day as liquidated damages for each day's delay in completion beyond that time; that appellee furnished Armstrong, as part of

said contract, materials to the value of $1,349.75, which were applied in reduction of the sum to be paid Armstrong for the work under the contract; that immediately before the assignment by Armstrong, which was made on September 10, 1894, he ceased doing work under the contract, and appellee, in accordance with the terms thereof, served notices therein required, and proceeded to do said mason work; that the appellee supplied materials in the completion of said contract for mason work, for which there is due him $8.332.16; that he furnished labor to complete the same, and paid therefor $8,629.48, claimed to be due him; that appellee also expended in and about said work, for materials, labor, etc., $630.49, which is also due him; that under said contract there is due appellee, on account of liquidated damages by reason of failure to complete the work in time, $1,200; that extra work was done by Armstrong amounting to about $650; that the amount coming to Armstrong under the contract, and for extra work, was $14,650; that the several amounts due appellee under the contract, as above set forth, added together, make $20,341.88; and that, deducting from the latter amount, $14,650, there is due appellee a balance of $5,691.88. In the course of the proceedings, rules were made upon the appellee to file bills of particulars. In answer to one of said rules, he filed a copy of said contract, dated August 6, 1894. The twelfth clause of the contract between the appellee and Armstrong is as follows: "Should the party of the first part at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements on his part herein contained, such refusal, neglect, or failure being certified by the architect,-the party of the second part [Beifeld] shall be at liberty, after three days' written notice to the party of the first part, to provide any such labor or materials, and to deduct the cost thereof from any money then due or thereafter to become due to the party of the first part under this contract; and if the architect shall certify that such refusal, neglect, or failure is sufficient ground for such action, the party of the second part shall also be at liberty to terminate the employment of the party of the first part for the said work, and to enter upon the premises, and take possession of all materials thereon, and to employ any other person or persons to finish the work, and to provide the materials therefor; and, in case of such discontinuance of the employment of the party of the first part, he shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the party of

the second part in finishing the work, such excess shall be paid by the party of the second part to the party of the first part, but, if such expense shall exceed such unpaid balance, the party of the first part shall pay the difference to the party of the second part. The expense incurred by the party of the second part, as herein provided, either for furnishing materials or for finishing the work, and any damage incurred through such default, shall be audited and certified by the architect, whose certificate thereof shall be conclusive upon the parties." Among the exceptions filed by the appellant to the claim of the appellee in the county court was an exception denying that Armstrong ceased doing any work under the contract, or that he neglected the contract or permitted the same to go unfinished, or that he violated the contract in any respect, and averring that it was unnecessary for the appellee to buy materials and employ labor to complete said contract to the amount set forth in his claim, and that, if such amount was so expended, it was done without Armstrong's authority, and as a volunteer by appellee. A further exception was filed to appellee's claim for $1,200, upon the alleged ground that the delay in completing the work was appellee's fault, and not the fault of Armstrong.

David S. Geer (Edward Roby, of counsel). for appellant. Max Pam and Moses, Rosenthal & Kennedy, for appellee.

MAGRUDER, J. (after stating the facts) Upon the trial of the case in the county court, the witnesses for appellee testified to the expense incurred for furnishing materials and for finishing the work, and to the damages incurred through the alleged default of the insolvent, without producing the certificate of the architect, or explaining its absence. The appellant moved to exclude such testimony, but the same was received over his objection. Again, at the close of the testimony for the claimant, the appellant moved the court to exclude the evidence, and direct a verdict disallowing the claim, for the reason that the expense incurred by the appellee for furnishing materials and finishing the work under the contract had not been certified by the architect. This motion was denied by the court, and exception thereto was preserved. Again, nine instructions were given for the claimant below (the appellee here), all of which presented the case to the jury without referring in any way to the necessity for the production of the architect's certificate. The action of the trial court in the respect thus indicated is assigned as error, and is the only one of the errors assigned which we deem it necessary to notice.

When a building contract provides that the work shall be completed to the satisfaction of the architect who superintends it, and shall be paid for upon the production of his certif

In

icate approving the work, and valuing the amount done, such provision is valid; and the approval of the architect must in such case be obtained, before compensation can be recovered. In an action for the price of the work done or materials furnished under the contract, the fact of the architect's approval must be averred and proved. Where a certificate of such approval by the architect is called for by the contract, the production of such certificate is, as a general rule, a condition precedent to the right of the contractor to recover compensation, unless its production is waived, or is shown to be withheld by fraud or collusion. The want of the certificate is a good defense in an action by the contractor upon the contract, and, in order to justify a recovery, it must be averred and proven that the condition requiring the certificate has been complied with, or a sufficient excuse must be shown for not doing so. 29 Am. & Eng. Enc. Law, pp. 926-931. Michaelis v. Wolf, 136 Ill. 68, 26 N. E. 384, we held that where, in a building contract, provision is made for the payment of the price, or a portion or portions of such price, upon the certificate or certificates of the architect in charge of the construction of the building, the obtaining or presentation of such certificate or certificates is a condition precedent to the right to recover payment; and such condition must be strictly complied with, or else a good and sufficient excuse shown. Again, in Gilmore v. Courtney, 158 Ill. 432, 41 N. E. 1023, we said that, the failure by the contractor to apply to the architect for a certificate being a condition precedent, the contractor has no right to assume. that the architect would refuse to act, or, in acting, would do so fraudulently. Clause 12 of the contract provides that Beifeld shall have the right to terminate the employment of Armstrong for the work, and to enter upon the premises and take possession of all materials thereon, and to employ other persons to finish the work, and to provide the materials therefor, if the architect shall certify that the refusal, neglect, or failure of Armstrong to furnish the work and materials required by the contract, or to prosecute the work promptly, or to perform any of the agreements therein contained, is a sufficient ground for such action on the part of Beifeld; that is to say, the right of Beifeld to take possession, and himself finish the work, is conditioned upon the certification of the architect that Armstrong's default is such as justified Beifeld in so doing. Where a contract provides that, in case of the failure of the contractor to do any of the work required, the other party shall, upon a certificate by the architect of such refusal or neglect, be at liberty to terminate the employment, and furnish the labor and materials necessary to complete the contract, and charge the expense to the plaintiff, the requirement that the architect shall thus certify to the contractor's failure must be com

plied with.

O'Keefe v. St. Francis Church, 59 Conn. 551, 22 Atl. 325; 29 Am. & Eng. Enc. Law, p. 957, note 4. In the case at bar, no proof was introduced to show that the architect certified to such a default on the part of Armstrong. And the instructions given to the jury proceed upon the theory that the production of such a certificate is unnecessary. We think that this was error.

Clause 12 also provides that in case Beifeld takes possession, and completes the work himself, the expense incurred by him shall be audited and certified by the architect, and that the architect's certificate thereof shall be conclusive upon the parties. In view of this provision in clause 12 of the contract, an action for the breach of the contract, and for the expenses of labor and materials thereunder, cannot be maintained without such certificate of the architect; and a failure to present such certificate, or offer any explanation for not doing so, gives rise to the presumption that the claimant was not entitled to such certificate. Coey v. Lehman, 79 III 173; Gilmore v. Courtney, supra. Here the architect's certificate as to the amount of damage for delay and default, and for the expenses of labor and materials, was not produced, and the objection of the appellant to the testimony on account of its nonproduction was overruled. We regard this as

error.

Counsel for appellee, however, take the position that Armstrong abandoned the contract, and that by reason of such abandonment the appellee was entitled to damages for a breach of the contract without produc ing the architect's certificate. In other words, it is contended that the claim here made is not upon the contract, but is for damages independent of the contract. This contention, however, cannot be maintained. The appellee's claim for the amount due him is presented under section 5 of the voluntary assignment act. That section provides for filing exceptions to the claim of a creditor. and further provides that the county court shall proceed to hear the proofs and allegations of the parties in the premises, and shall render such judgment thereon as shall be just, and that the court may allow a trial by jury thereon. 1 Starr & C. Ann. St. p. 1305. It is true that no formal declaration is required under said section 5. But, here the statement of his claim, as made by ap pellee, is based wholly upon the contract. When called upon to file a further bill of particulars, he filed the contract itself, as a part of his bill of particulars. One of the items going to make up his claim is an item of $1,200 as liquidated damages for delay in the completion of the contract. There is no provision for liquidated damages, outside of the contract itself. The mode adopted by appellee for establishing the amount due him is in accordance with the terms of the contract. The amount which he claims to be due is the excess of the expense incurred