sufficient matter to challenge the attention of the court, and such a case is thereby presented as to authorize the court to deliberate and act, it is sufficient for the purpose of conferring jurisdiction."

The circuit court of Saline county, in chancery sitting, had jurisdiction of the subjectmatter of the proceeding in which the decree in question was rendered,-that is, it had jurisdiction of that class of cases wherein decrees may be lawfully rendered removing clouds from titles. It had jurisdiction and power to judicially consider and determine whether the case as disclosed by the bill entitled the complainant in the bill to relief of that character. That it fell into error in the exercise of its jurisdiction and power could not operate to deprive it of jurisdiction to act. An error in the exercise of jurisdiction cannot be urged to impeach its decree in a collateral proceeding. Having complete jurisdiction of the persons and of the subject-matter, it was clothed with lawful power to act, and its action, however erroneous, must be regarded as valid and binding in every collateral proceeding. Hobson v. Ewan, 62 Ill. 146; Wenner v. Thornton, 98 Ill. 156. "When jurisdiction has once attached, the court has a right to decide every question arising in the case, and errors of judgment or irregularities, however gross, which do not render the judgment absolutely void, are not available on collateral attack, but the judgment is valid until reversed or vacated by direct proceeding." 12 Enc. Pl. & Prac. 197. The judgment of the appellate court must be and is affirmed. Judgment affirmed.

MAGRUDER, J. (dissenting). The decree in the former suit was not binding on the defendant, because he was served only by publication. There was no personal service. A man cannot be deprived of his property, under the United States constitution, without due process of law. Service by mere publication, in such a case as is shown here, is not due process of law. Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565.

(185 111. 400)

BALTIMORE & O. S. W. RY. CO. v. KECK.

(Supreme Court of Illinois. April 21, 1900.) RAILROADS-INJURIES CROSSINGS - NEGLIGENCE-INSTRUCTIONS-COST BOND-PLEADING-DEFECT CURED BY VERDICT-SEALED VERDICT-FAILURE TO OBJECT.

1. Erroneous refusal to instruct the jury to disregard a number of counts in a declaration was harmless, where there was one count not objected to, which would sustain the judgment, and to which the evidence admitted would apply.

2. Where, in an action for an injury resulting from a defective private crossing, maintained by a railroad company, certain counts in the declaration do not allege plaintiffs' right to use such crossing, such defect, if any. in the absence of a demurrer, is cured by the verdict.

3. Where there was evidence tending to show willful and wanton negligence on the part of the defendant, as alleged in the declaration, it was not error to instruct thereon.

4. Hurd's Rev. St. 1897, c. 114, §§ 62, 65, 66, requires railroads to construct and maintain private crossings, and provides that, if they fail so to do, after notice has been given in writing by the occupant of adjoining lands, such occupant may build or repair such crossing, and recover double the expense from the company. Held, that the fact that the company had not received notice of the defective condition of a crossing did not relieve it from liability for an injury occasioned thereby.

5. Where, in an action against a railroad company for an injury caused by a defective crossing, the evidence did not show that the plaintiff did not have sufficient time to have crossed the track, without injury, if his foot had not caught, it was not error to refuse to instruct that, if defendant saw the train approaching, he should have stopped till it passed, as one may cross a railway track in front of a train when there is a reasonable time so to do.

6. It was not error to refuse to require one suing as next friend to file a cost bond, where the motion therefor was not made till the day of the trial, and the granting thereof would have delayed the trial.

7. Where the court charged the jury, in the presence of counsel for defendant, that they might return their verdict in a sealed envelope to the officer in charge, and be discharged for the term, the defendant will not be heard to object on appeal that there was no opportunity to poll the jury, when he did not object to such arrangement when made.

Appeal from appellate court, Fourth district.

Action for injuries by George Keck against the Baltimore & Ohio Southwestern Railway Company. From a judgment for plaintiff, affirmed by appellate court (84 Ill. App. 159), defendant appeals. Affirmed.

Robert E. Hamill, Kramer, Creighton & Schaefer, and Silas Cook, for appellant. Ropiequet, Perrin, Baker & Canby, for appellee.

WILKIN, J. This is an action for a personal injury, begun by George Keck, a minor, in the circuit court of St. Clair county, against the Baltimore & Ohio Southwestern Railway Company. A trial by jury resulted in a verdict of $5,000 for plaintiff. Upon appeal to the appellate court for the Fourth district, that judgment was affirmed, and the case is brought here upon further appeal.

The declaration contains six counts, the third charging willful and wanton negligence on the part of defendant, while the others allege, in substance, that the appellee, a boy about 14 years old, residing with his father, Philip Keck, lived on a farm which the appellant's road crossed in an east and west line; that there was a private way leading from Philip Keck's house across the railway track to the highway on the south side of the farm; that where this private way crossed the track there was a farm crossing maintained by appellant, and that it was the duty of appellant, under the statute, to keep the crossing in safe repair for those using it and residing on said farm; that appellant suffered it to become out of repair and unsafe for such use, in this: that the planks were rotten, worn down, and not securely fastened, and that the space between the edge of the

plank and the north rail of the track was so wide as to be unsafe for those passing over it, and that in consequence of the condition of the crossing the foot of appellee, George Keck, while on his way to school and exercising due care in crossing the said track, became caught and fast in the space between said plank and the north rail of the track, and while so caught he was struck by appellant's train, improperly and negligently managed, causing the loss of his right leg below the knee. To these counts the defendant pleaded the general issue, and then, at the close of all the evidence, presented to the court six instructions, one directed to each count, instructing the jury to disregard it. These instructions were refused, and the refusal is assigned as error.

It is said the instruction directed to the first count should have been given because that count fails to allege in what respect defendant was negligent, and that the second, fourth, and fifth should have been given because the counts to which they were directed fail to disclose any right in the plaintiff to use the crossing. Error in refusing to instruct a jury to disregard certain counts in a declaration is harmless, where there is one good count in the declaration to which the evidence is applicable, and which is sufficient to sustain the judgment. Conceding these counts were subject to the criticisms urged, the fifth count, which was good and to which no objection is made, will sustain the judgment. Railroad Co. v. Anderson, 166 Ill. 572, 46 N. E. 1125; Coal Co. v. Scheiber, 167 Ill. 539, 47 N. E. 1052; Railroad Co. v. Weiland, 179 Ill. 609, 54 N. E. 300. Moreover, the defects in these counts, although they might have been fatal on demurrer, are, under the proofs, cured by the verdict. Defects and omissions in pleadings, in substance or form, which would have been available on demurrer, are cured by the verdict, where the issues joined are such as necessarily require proof of the facts so defectively presented, and without which proof it is not to be presumed that the court would have directed or the jury would have given the verdict. Coal Co. v. Scheiber, supra, citing Railroad Co. v. Hines, 132 Ill. 161, 23 N. E. 1021, As was said in the Scheiber Cașe, the ruling of the court in refusing to give the instructions in question was not a decision "that the counts of the declaration to which the instructions severally applied were faultless, but only that they were sufficient, after issue joined and in view of the evidence then before the court and jury, to support a verdict and judgment for the plaintiff."

It is said error was committed in giving the third instruction for plaintiff, directed to the third count, which alleged willful and wanton negligence on the part of defendant, it being urged that there was no evidence whatever tending to support that count. Upon examining the evidence, we cannot say, as a matter of law, the trial court erred in giving that

instruction. Without undertaking to pass upon its weight, it cannot be said there was no evidence tending to support the issue joined upon that count.

*

*

*

*

Instructions were asked on behalf of defendant stating that under the statute a railroad company is not required to repair a farm crossing until after notice from the owner or occupant of the adjoining land that it is in need of repair, and that no recovery can be had for an injury resulting from the use of such a defective crossing in the absence of such notice given. No error was committed in refusing these instructions. Section 62 of chapter 114 (Hurd's Rev. St. 1897, p. 1249), being an act approved March 31, 1874, provides that railroad corporations shall construct farm crossings "when and where the same may become necessary, for the use of the proprietors of the lands adjoining such railroad." Section 65, following, provides that whenever a railroad "shall neglect or refuse to build or repair * * farm crossings, the occupant of the lands adjoining may give notice in writing to such corporation * to build such farm crossings within thirty days (or repair said farm crossings within ten days) after the service of said notice." The next section provides that, in case the building or repairing is not done as specified by the act, the occupant of the land may build or make the repairs, and recover double value, etc., and costs of suit. The contention that the statute contemplates repairs to be made only after notice is without merit. It is clear the duty to build or repair is placed upon the railroad company, without regard to the written notice mentioned in the subsequent section. When the company fails to perform that duty, the occupant of the adjoining land may do the work himself, and the prior written notice is required only for the purpose of enabling him to recover from the company double the value of the improvement as his compensation, and also as a penalty against the company for its failure to make the improvement.

*

It is insisted the court committed error in refusing to give the forty-sixth and fortyseventh instructions asked by defendant. They tell the jury, in substance, that if appellee, as he approached the crossing, saw the train coming, it was his duty to stop and let it pass, and that if he attempted to cross in front of the approaching train he was guilty of negligence. These instructions do not state the law correctly. If one reasonably appears to have time to do so, although he may observe the train approaching, he may attempt to cross a railroad track without waiting. The evidence here does not tend to show that the injury was caused by reason of plaintiff not having time to cross in front of the approaching train, but from the fact that he caught his foot in the defective crossing. These instructions ignore the element of time, and the fact that the boy

firming that of the court below. Judgment affirmed.

Other questions are raised with reference to the giving and refusing of instructions, but we are satisfied no error was committed in that regard. Those given stated the law fairly, and as favorably to appellant as it could legally ask.

On the day of the trial a motion was made by appellant to require appellee to file a cost bond, inasmuch as he was suing as next friend. The record shows no action taken by the court upon the motion, and the case was not delayed on that account, but the trial proceeded to verdict. Afterwards, a cross motion, supported by affidavit, for leave to prosecute as a poor person, was filed and the motion allowed. It is said that the court erred in proceeding to trial without compelling the filing of a cost bond. From the record it is apparent the motion for cost bond was made on the same day the case was set for hearing, and no reason appears why the motion was made at so late a time. It was a matter within the sound discretion of the court whether the rule should be then entered and the trial delayed. At least, no injury is here shown to have resulted to the defendant. The filing of a bond for costs in a case of this kind is not, as counsel seem to urge, a jurisdictional prerequisite. Railroad Co. v. Latimer, 128 Ill. 163, 21 N. E. 7. At the close of the trial, it being on Friday, and the last case in which the jurors would be needed for that term, the court, in the presence of counsel for defendant, told the jury, if they agreed upon a verdict, they should reduce it to writing, all sign it, place it in a sealed envelope, deliver it to the officer in charge, and then be discharged from further attendance for the term. No objection was made to this direction, and it was followed by the jury. Counsel now urge that the verdict was irregularly presented in court, the jury not being present, and no opportunity given to poll the jury. We have held in a similar case (Powell v. Feeley, 49 Ill. 143) that failing to object to the course pursued by the court, at the proper time, waives the right to do so afterwards. A party cannot be allowed to remain silent, make no objection to the proceedings of the court, and then, after learning that the deliberations of the jury have resulted against him, make his objection for the first time. Counsel contend the objection was made at the first opportunity. We do not think so. It should have been made when the direction was given to the jury, and at that time, as the record expressly shows, counsel for de fendant was present. They entered no protest whatever, but apparently acquiesced in the directions.

From a careful examination of the whole record, we fail to find any ground for disturb

(25 Ind. App. 264)

MOREWOOD CO. v. SMITH et al. 1 (Appellate Court of Indiana. April 17, 1900.)

MASTER AND SERVANT-INJURY TO SERVANT -MINOR SERVANT-CONTRIBUTORY NEG

LIGENCE-ASSUMPTION OF RISK.

1. A boy 17 years old, and of ordinary intelligence, who is injured by dangerous machinery, near which he has been set to work by his master, and the dangerous character of which was as apparent to him as to the master, cannot recover therefor merely because he is a minor, where the injury was caused by reason of his own negligence and inattention to what he was doing; there being no necessity for him to expose himself to the danger in the prosecution of his work.

2. Though a servant who is directed by the master to do work other than that for which he was originally employed can recover for an injury received in such new employment from a dangerous piece of machinery, the dangerous character of which was as apparent to him as to the master, on the theory that he had not assumed the risk incident to the employment, he cannot recover therefor where his duties in the new position did not require him to expose himself to such danger, and the injury was caused by his own carelessness in so doing, and grew out of the manner in which he did his work.

Appeal from circuit court, Grant county; J. L. Custer, Judge.

Action for injuries by William Smith, by his next friend, against the Morewood Company. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

In

This is an action for damages commenced by appellee, by his next friend, Charles F. Felts, against appellant. The injury is alleged to have been caused by the negligence of appellant. Appellant and appellee occupied the relative positions of master and servant. There are three paragraphs of complaint, in all substantial respects alike. appellee's amended third paragraph of complaint it is averred: That appellee is an infant under the age of 21 years, and that appellant is a corporation engaged in the manufacture of tin plate. That on the day the injury occurred he was 17 years old, and ignorant and inexperienced in working in and about the factory, all of which was well and fully known to the appellant. That he was employed by the appellant to work in their said factory, which consisted of large buildings, in which were operated a vast amount of machinery, and in which were employed more than 600 men, boys, and girls. That at the time said injury occurred he had been in 1 Rehearing denied.

the employ of appellant for about 2 years, in what was known as the "Cold-Roll Department." That said work was not complicated, hazardous, or dangerous, and he was fully able and competent to perform the same. That on the morning of the day upon which he received his injury, and just prior to the time he began work, the appellant ordered and directed him to go to work in what was known as "Mill No. 8," in the hot-roll department. That the character and nature of the new work he was ordered to do were different from his former employment; the new work being dangerous and hazardous, the appliances and machinery different, the place dissimilar, and the employés working therein new and strange. That he had neither time nor opportunity to acquaint himself with the place wherein he was to work, nor with the machinery which he was compelled to use. That he was wholly inexperienced and unacquainted with the duties he was called upon to perform, all of which was well and fully known by appellant. That appellant gave him no instructions about his new work, nor did it caution him in any manner about the danger and hazard of the place, nor of the defective and unsafe machinery. That in the morning of the day aforesaid, in obedience to appellant's orders, he commenced work. That a part of his duties consisted in gathering up scraps of iron that were cut off by said mill No. 8, to pack, tie, weigh, and pile them up, and to carry to the shearman of said mill the iron sheets that were to be trimmed and squared, and to pile them on his table beside him, ready for use. That said scraps of iron were cut by shears attached to a table about 2 feet wide and 22 feet long and 2 feet high. This table was open beneath, and said shears were operated by two iron cogwheels situated about 18 inches from the end of the table, at appellee's left. That one of said wheels was about 1 foot in diameter, and the other about 2 feet in diameter. The top of the lower and smaller wheel was about 8 or 10 inches above the floor. That an iron bar or shaft extends from the lower cogwheel some 6 inches above the floor under the aforesaid table, by means of which the shears were operated. That it was necessary for appellee, in the discharge of his duties, to stoop over said iron bar, and to step over the same, and likewise to reach across said bar, in order to pick up scraps of iron which were cut off by said shears. That the appellant negligently and carelessly set appellee at work in this hazardous and unsafe place, and near and close to said cogwheels. That said cogwheels were defective and dangerous on account of their being uncovered and unguarded. That said wheels could have been covered at a trifling expense, and without impairing their usefulness, and that, by reason of their uncovered condition, appellee was exposed to great and unnecessary risks and dangers, on account of which negligence and carelessness on the part of appellant said appellee, on the

day aforesaid, while stooping down at the end of said table, and near to said cogwheels, and while engaged in proper and necessary duties, and while using due care and caution, without any negligence or fault upon his part, his left hand was caught and drawn into said cogwheels, and was so badly crushed that it had to be amputated. That said defective, unsuitable, and dangerous machinery, and the unsafe and hazardous place where he was set to work, were fully known and understood by the appellant, but were unknown to appellee, when he was ordered and set to work in and about the same. That the plaintiff did not and could not realize, understand, or comprehend his dangerous position until he was injured as aforesaid, and he did not have sufficient judgment or understanding to comprehend and grasp the dangers to which he was exposed. That if said cogwheels as aforesaid had been fenced, guarded, or boxed, and said machinery suitable and safe for the purpose for which it was intended, he would not have been injured while engaged in his said duties as above set forth. Appellant filed a general denial to each paragraph of complaint.

There is no question as to the sufficiency of the pleadings. The cause was submitted to a jury, and a verdict returned in favor of appellee. With the general verdict the jury answered and returned 64 interrogatories. The only question in this cause arises upon the action of the court in overruling appellant's motion for judgment upon the findings of fact notwithstanding the general verdict. By the answers to the interrogatories, the jury found: That at the time of the injury appellee was 17 years old. That he had prior to said time worked in the cold-roll department of said mill for more than 2 years. That the injury occurred on the 16th day of April, 1897, while appellee was in appellant's employ. That appellee had been engaged in the department of appellant's factory where he was working at the time he received his injury prior to said time. That the cogwheels by which appellee's hand was injured were exposed to view and easily to be seen, and appellee was acquainted with the nature and purpose of said wheels, and had frequently seen said wheels prior to the time of his injury. In the cold-roll department, where appellee had been employed, there were large steel and iron rollers working against each other, and it had been a part of the duties of appellee to pass plates of iron through such rollers, and to catch plates of iron when they were so passed through. On the date of the injury to appellee he was 5 feet and 10 inches tall, and weighed 135 pounds. That appellee had worked in the hot-roll department of appellant's mill a part of a day before the day on which he was injured. That the injury was caused by appellee's getting his hand caught in two revolving cogwheels. That the diameter of the larger wheel was 24 inches, and of the smaller wheel 71⁄2 inches. The center of the small

er wheel was situated directly above the center of the larger wheel. An iron shaft passed through the center of the lower wheel, and extended east and west, and rested upon bearings at each end. The upper wheel was similarly arranged. Appellee was, at the time the injury occurred, working at what was known as "No. 8 shears," performing the duties of "scrap boy." That from the point on said cogwheels where said wheels meshed together to the nearest corner of the scrap table, it was 28 inches, and it was 22 inches from the point where said wheels meshed to the floor. The scrap table was 24 inches high. The lower blade of the shears was fixed or stationary. On the east side of the shear blades there was an iron table, on which the pieces and scraps of iron fell when the shears were in use. This was the table known as the "scrap table." It was 30 inches long and 27 inches wide. One side was supported by iron legs. The other side joined up to, and was attached to, the lower blade of the shears. Appellee worked at the east and north sides of the table, and, in removing the scraps therefrom, carried them away "from the direction of said cogwheels." The shears were operated by a man called a "shearman," who stood on the west side of the shears, and who was operating the shears at the time the injury occurred. The scraps which were cut off fell upon the iron table on the east side of the shears. That appellee's injury was caused by his "thoughtlessly and thinkinglessly" getting too close to the cogwheels while they were in motion. When appellee received his injury, he was upon his right knee, with his left hand upon and projecting over his left knee, and his injury resulting from thoughtlessly, and by inattention, placing himself in a kneeling position too near the cogwheels. Appellee knew the purpose and object of the cogwheels, and it was not necessary, in the performance of his duties at the time he was injured, to get against, work with, or in any manner touch the cogwheels by which he was injured. Appellee understood the nature of the work he undertook to perform and was performing on the day he was injured. He understood the nature of said cogwheels. He knew the effect of permitting his person or clothing to come into contact with said wheels while they were in motion.

Appellee's minority is not, of itself, sufficient to change the rule that contributory negligence will defeat a recovery. Engine Works v. Randall, 100 Ind. 293; Stewart v. Patrick, 5 Ind. App. 50, 30 N. E. 814. The appellee was a boy 17 years old, of ordinary intelligence. He knew the location of the cogwheels. They were plainly exposed to view. There was no hidden danger. He knew the effect of coming in contact with the wheels. It was not necessary that he should come in contact with the wheels in the performance of his duty. The case is

very similar to Stewart v. Patrick, supra. In the last-mentioned case the injured party was a boy 16 years of age, who was set to work at a machine which, in part, consisted of a platform or table in front of revolving knives. The boy was injured while wiping the platform of the machine in front of the revolving knives. It was not necessary for him to do this in the performance of his duty, and, such facts appearing in the answers to interrogatories, this court reversed the judgment of the lower court, which had been rendered upon the general verdict. In the case of Engine Works v. Randall, supra, the supreme court of this state repeat an old, established rule, to the effect that where the danger to be encountered is equally open and observable to the master and servant, and the servant is injured by reason of his own inattention and negligence, there can be no recovery. See, also, Ruchinsky v. French (Mass.) 46 N. E. 417; O'Connor v. Whittall (Mass.) 48 N. E. 844; Carbon Co. v. Jackson (Ind. App.; decided March 28, 1900) 56 N. E. 862; Railway Co. v. Ray (Ind. Sup.) 51 N. E. 923; Stone Co. v. Wolf, 138 Ind. 496, 38 N. E. 52. If we accept the rule of law announced in the case of Coal Co. v. Hoodlet,, 129 Ind. 327, 27 N. E. 741, as applicable to this case,-such rule being to the effect that when a master orders a servant to do something not contemplated in his employment, although the risk is equally open to the observation of both, it does not necessarily follow that the servant either assumes the increased risk, or is negligent in obeying the order, -the facts found preclude a recovery, because it is stated by the jury that it was not necessary that appellee come in contact with said cogwheels in the proper performance of his duties, and that he came in contact with said wheels through his own thoughtlessness and inattention. The rule as announced in the Hoodlet Case can only apply where a servant is ordered from his usual employment temporarily, to do something not connected therewith. If it meant other than this, the boy, for example, who entered a mill as "feeder" in the cold-roll department, who, being retained by the master, is advanced through all the various departments as his age and experience would warrant, would at no time assume the dangers incident to any employment except that of feeder. In all cases falling within this rule a distinction must be drawn between dangers growing out of or connected with the manner in which the servant does the work, and those dangers naturally incident to the service in which he is engaged. In this case the answers to the interrogatories clearly fix appellee's negligence contributing to his injury. The facts found are in irreconcilable conflict with the general verdict. The judgment is reversed, with instructions to the lower court to sustain appellant's motion. for judgment.