for which he would be liable independent of the agreement, he was not liable for damages caused by the subsequent natural settling of the foundation; there being no duty of lateral support.

Appeal from appellate court, First dis trict.

Action by Edward Kramer against the Northern Hotel Company for damages to plaintiff's premises. From a judgment of the appellate court (85 Ill. App. 264) affirming a judgment in defendant's favor, plaintiff appeals. Affirmed.

Barnum & Barnum and Robins S. Mott, for appellant. Hugh L. Burnham, for appellee.

PHILLIPS, J. On May 13, 1890, the appellant, as first party, and appellee, as second party, entered into a written agreement, in which it was recited that the hotel company was desirous of erecting a hotel building in the city of Chicago, the east line of which was to be contiguous with and adjoining the premises occupied by Kramer as a saloon and boarding house, and that it was desirous of extending its east foundation under the west wall and west portion of the basement of the building so occupied by him as tenant, and license so to do was therein given on the payment to Kramer of $1,800, conditioned on the hotel company obtaining the written consent of the owner of the building, and permission was given to tear down such portion or portions of the west wall inclosing the basement as might be necessary, and to occupy the basement for the purpose of excavating and building the foundation of said hotel building, and so to use and occupy the said basement for 45 consecutive days, and no longer, fixing therein the date of commencing such operations. It was further provided that five days' written notice should be given to the said Kramer of the time of commencing operations, so as to permit him to remove certain saloon fixtures. It was further provided that the hotel company should first, before commencing any other work, remove and restore on the other side of the basement all sewer, water, and gas pipes, so that Kramer might not be in any wise disturbed in his use of the sewer, water, and gas in said building; and also that the hotel company should not obstruct, in any manner, the entrance to the saloon or upper part of said building, and that the hotel company "will at its own expense support and sustain the west wall of the said building during the excavating and putting in of said foundations, and will restore said basement, including sewer, water, gas, and waste pipes, and said west wall, to the party of the first part, at the conclusion of said work, in the same condition as the same now are, except only as to the saloon fixtures, which are to be removed by the party of the first part; that it will wholly finish and complete said operations within forty-five days," and pro

viding for liquidated damages at $30 per day for each day that the basement should remain in an unfinished condition after 45 days from the commencing of work according to notice; "and that it will pay to the party of the first part any damages which he may sustain in and about the construction of said hotel building, and for which said party of the second part would be liable were it not for this instrument, other than such damages as may be sustained by him by reason of the use and occupation of the basement, and, in addition thereto, will pay any and all damages which may be sustained by the party of the first part by reason of the negligence of the party of the second part, its agents or servants, in or about any of the work or operations in or about the said basement." Time was made of the essence of the agree ment. Afterwards the appellant commenced his suit in assumpsit thereon against the appellee, alleging certain breaches of the contract, to which the defendant pleaded not guilty. On the trial it was attempted to be shown that the foundation put in by defendant settled, causing cracks in appellant's building, and that thereby, and on account of failure to take care of the water falling on plaintiff's roof, and the removal of the down spout which had formerly passed through plaintiff's west fire wall, which extended some 18 inches above the roof, and thence down the side of his house, and failure by the defendant to supply another, the water came down through the various stories of plaintiff's house, thereby drenching his rooms, damaging his furniture, and causing his boarders to leave. The jury found the issues for the defendant, and also answered specially certain interrogatories, all of which supported their general finding. The judgment of the circuit court has been affirmed by the appellate court. No cause is shown by the errors assigned for a reversal of that judgment, unless there was error in the giving of instructions offered by the appellee.

Appellant complains of certain instructions given, but we fail to find any reason, from his brief, for his contention that they are incorrect, or the jury were misled by them. By the second instruction the jury were told that if they believed, from the evidence, that the defendant, before entering upon plaintiff's premises, received permission so to do and do certain work, including the removal of the down spout and the placing of another in its stead to carry the water from the premises occupied by the plaintiff, and that it, by its servants, was making every effort to complete said work, and would have done so before the plaintiff's premises had been damaged but for the fact they were ordered from the premises by the plaintiff himself before said work was completed, thereby revoking the permission, and that defendant's servants had no right to stay longer, then the jury should find defendant not guilty for any damages caused by its failure to complete

said work. And by the third instruction the jury were told that, even if they believed that the plaintiff ordered the agents or servants of the defendant away because having been told to do so by one John Root, the architect, and even if Root did give such advice, the plaintiff was not excused from the duty of permitting the defendant to repair the roof or down spout, and that, if the plaintiff refused to permit the workmen of the defendant from making such repairs, he could not recover for any damages which happened after that time. These two instructions were based on the evidence, and there was no error in giving them. By the fourth instruction the jury were told that no duty rested upon the defendant of preventing the plaintiff's west wall or building from sinking along with the defendant's own building; and by the fifth that if they believed, from the evidence, that the defendant, at the end of the 45 days, restored plaintiff's cellar, including the sewer, water, gas, and waste pipes and the west wall of plaintiff's building, to as good a condition as they were in at the time when the defendant entered to build its foundation, and that the defendant afterwards used reasonable care in erecting its own building, not to injure plaintiff's premises, the plaintiff could not recover for any damages, if any there were, caused thereafter by reason of any sinking, settling, or other injury to plaintiff's building resulting solely from the construction and settling of the wall and the building which the defendant built upon its own adjoining property. And by the sixth instruction they were told that the defendant was required to support plaintiff's west wall only while it or its agents were at work in the basement of plaintiff's premises, and on leaving said basement at the completion of their work they were only required to leave the support to said wall in as good condition as when they entered to begin their work; and that if they believed, from the evidence, that the defendant did these things, then the plaintiff could not recover for damages, if any there were, which resulted afterwards by reason of the sinking of said west wall of plaintiff's building. It will be noted that by the terms of the contract the defendant was not absolved from the payment of damages sustained by the plaintiff other than those sustained by reason of the use and occupation of the basement, and that the defendant expressly agreed to pay such damages for which it might be liable were it not for the instrument. By the further terms of the instrument, however, the defendant was only required "at its own expense to support and sustain the west wall of said building [plaintiff's building] during the excavating and putting in of said foundation." This requirement would negative the idea that defendant was required to support plaintiff's wall so as to prevent it settling thereafter with the foundation upon which it 57 N.E.-54

stood. The relations sustained by the parties under the contract were not the same as parties to a party-wall agreement. Plaintiff was a tenant merely. Defendant was given the right to put down its foundation under his building, for which he received $1,800. No recovery can be had for damages the reasonable, natural, and ordinary result of the location of this foundation and the placing of the superstructure upon it. No duty of lateral support rested upon defendant. City of Quincy v. Jones, 76 Ill. 231. The remaining instruction did not go to the right, but only to the extent, of recovery. Finding no error in the record, the judgment of the appellate court for the First district is affirmed. Judgment affirmed.

(186 Ill. 246)

NORTH CHICAGO ST. R. CO. v. KASPERS. (Supreme Court of Illinois. June 21, 1900.) STREET RAILWAYS-JUMPING ON MOVING CAR -PROOF OF CUSTOM-ENCOURAGEMENT OF CUSTOM NEGLIGENCE PER SE - CIRCUMSTANCES-INSTRUCTION-PROVINCE OF JURY. 1. Where, at the transfer station from defendant's electric line to their cable cars, the latter were started by the car-barn cable, and were carried by their own momentum a distance of 50 feet, to where the down-town cable was picked up, and the plaintiff, who had run after a car while it was moving slowly of its own momentum, and stepped on the platform, was thrown and injured by the sudden jerk occasioned by the picking up of the down-town cable, evidence that passengers during the crowded travel of the morning hours were in the habit of running after the cars and jumping on them at that point was incompetent for the purpose of establishing a standard of ordinary care.

2. Evidence that it was the custom of passengers during the crowded travel of the morning hours, to so run after and jump on the cars, and that the defendant's conductors encouraged them in so doing, by assisting them on the car and telling them to come on, was competent to show negligence on the part of the defendant.

3. An instruction that the court did not mean to give an opinion as to what were or were not the facts in the case, but that it was solely and exclusively for the jury to determine from the evidence, and having done so to apply to them the law as stated in the instructions, was not objectionable as giving the jury to understand they were independent of the law.

Appeal from appellate court, First district. Action by Lambert Kaspers against the North Chicago Street-Railroad Company. From a judgment in favor of plaintiff, affirmed in the appellate court (85 Ill. App. 316), defendant appeals. Affirmed.

John A. Rose and Louis Boisot, Jr. (W. W. Gurley, of counsel), for appellant. Francis J. Woolley, for appellee.

CARTWRIGHT, J. On December 31, 1896, the appellee, Lambert Kaspers, who was then 14 years of age, was employed as a cash boy at the store of Marshall Field & Co., in Chicago, earning three dollars a week. He lived on Wolfram street, and was required

to be at the store at 8 o'clock. On the morning of that day he took one of appellant's Lincoln avenue electric cars at the corner of Herndon, George, and Lincoln avenues, and became a passenger on appellant's street railway to the business part of the city, near the place of his employment. He paid his fare, and received a transfer ticket enabling him to ride from the end of the electric line on appellant's cable-car line the rest of the distance. He was carried to the end of the electric line at the corner of Lincoln, Wrightwood, and Sheffield avenues, and when he got off the car he saw a train of four cars, consisting of a grip car and three passenger cars, standing on Sheffield avenue, ready to start. He walked towards it, and when about 20 feet behind it it started. He ran up to the train, and ran alongside of it, past three cars, and attempted to climb on the front platform of the first car. He had got on the step at the front end of the car, and was stepping up on the front platform, when the speed of the train was increased, and he fell off, with the result that he received a fracture of the bones of the left leg above the ankle. He brought this suit to recover damages for his injury, alleging that he was in the exercise of ordinary care, and that he was injured by appellant's negligence in causing the train to be violently jerked and accelerated in speed, by means of which he was thrown to the ground. He recovered a judgment for $5,000 in the trial court, which was affirmed by the appellate court. The errors relied on for reversal are-First, the admission of evidence as to the conduct of conductors and passengers upon other trains at times previous to this accident; and, second, the giving of the instruction numbered 31.

The evidence established the following facts concerning the management of trains at the place of the accident: The cable cars start for down town from that corner every four minutes. The trains of cars come out of the car barns by means of a cable that runs through the barn, and the cars run upon what is called the "stand," and load in their passengers. The speed of this barn

cable is about four and a half miles an hour. There is a separate cable which conveys the cars down town, and there is a vault about 20 feet long between the two. There is no rope in the vault, and the cars cross it by the momentum communicated to the train by the barn cable, and the down-town cable is picked up on the other side. When the trains start from the stand the gripman lets go of the barn cable about 15 feet north of the vault. The cars then run by their own momentum about 50 feet across the vault to about 15 feet south of it, where the downtown cable is picked up. Where the gripman takes hold of the new cable is called the "pick up," and the speed of that cable is nine miles an hour. It was at this place, where the gripman took hold of the new cable, that

the train started at a faster rate, and the plaintiff fell off.

The evidence admitted over the objection of defendant was that at the place where plaintiff ran along the train and tried to get on the car passengers frequently ran and jumped on as the train was moving slowly, and that conductors received passengers in that way, and encouraged the practice, telling them to come on, and aiding them to get on. There was no claim of any willful injury to the plaintiff, and he was required to prove that he was in the exercise of ordinary care for his own safety. But it is not negligence per se and as matter of law for a passenger to get on a street car when it is in motion. Whether he was guilty of negligence in doing so is a question of fact, depending upon the rate of speed of the car and other circumstances. Railroad Co. v. Wiswell, 168 Ill. 613, 48 N. E. 407. That question has been settled by the judgment of the appellate court. The care which, as a matter of law, plaintiff was bound to prove was such degree of care as a reasonably prudent person would exercise under similar conditions. On that question he would not be entitled to prove the mere fact that other persons boarded the defendant's cars while in motion, for the purpose of establishing a standard of ordinary care, regardless of whether those persons were reasonably prudent or negligent in so doing. At this hour of the day there was a great amount of travel at the point in question, and the general public embraces not only the reasonably prudent and cautious, but the careless, the heedless, and the reckless. It is not competent to show, as an excuse for an act of negligence, that others are accustomed to be equally negligent. The evidence did not show a general custom of the public to get upon the cars in that way, and if the jury should conclude that the persons who did so were not reasonably prudent, but were careless, that fact would not establish that the plaintiff was in the exercise of ordinary care in doing the same thing. But in this case the evidence was not only of the fact that other passengers got upon cars while in motion at this place, but also that the defendant permitted them to do so without objec tion, and even encouraged the practice. The evidence tended to prove notice to the defendant of the fact that passengers were likely to get aboard there under those circumstances, and also to prove that the defendant did not discourage the practice or prohibit it, but rather induced it, and a continuance of it, through its conductors, and if those facts were established it became defendant's duty to run its trains with reference to the practice and consistently with it. Plaintiff was a passenger entitled to the degree of care due from the defendant to a passenger, and if the defendant knew that persons would probably be

getting on the moving trains at that place, and consented to the practice, the law imposed upon it the duty to not expose the plaintiff to unnecessary danger in adopting the practice, and to manage the train accordingly. Pennsylvania Co. v. McCaffrey, 173 Ill. 169, 50 N. E. 713; Railroad Co. v. Lowell, 15 U. S. 209, 14 Sup. Ct. 281, 38 L Ed. 131. The defendant might have had the effect of the evidence properly limited when it was admitted, or by instruction, but as it was competent for one purpose it was not error to admit it.

The trial court gave to the jury, on its own motion, the following instruction, numbered 31: "Neither by these instructions or the special interrogatories, nor by any words uttered or remark made by the court during this trial, does or did the court intimate or mean to give, or wish to be understood as giving, an opinion as to what the proof is or what it is not, or what the facts are in this case or what are not the facts therein. It is solely and exclusively for the jury to find and determine the facts, and this they must do from the evidence. and, having done so, then apply to them the law as stated in these instructions. The instructions given to the jury are and constitute one connected body and series, and should be so regarded and treated by the jury; that is to say, they should apply them to the facts as a whole, and not detached or separated, any one instruction from any or elther of the others." The objection made to this instruction is that it gave the jury to understand that they were independent of the law. The ultimate questions of the care of the plaintiff and negligence of defendant were to be determined by the jury by applying the law as stated in the instructions to the facts as proved by the evidence, and it would be error to give an instruction impressing upon them their independence of the court and the law. Ludwig v. Sager, 84 Ill. 99. But we do not think the instruction is subject to that criticism. It directs the jury to find and determine the facts from the evidence, and to apply to such facts the law as stated in the instructions. It is correct as a proposition of law. The judgment of the appellate court is affirmed. Judgment affirmed.

(186 III. 109)

KEYES v. KIMMEL et al. (Supreme Court of Illinois. June 21, 1900.)

WILLS-MENTAL CAPACITY OF TESTATOR-UNDUE INFLUENCE — APPEAL AND ERROR — WAIVER-SUFFICIENCY OF EVIDENCE. 1. Where errors are assigned, but are not mentioned in the argument, they will be regarded as waived.

2. A testatrix had been married twice, and been twice a widow. She had two sous by the first marriage, and one daughter by the last. By a will executed in 1895. and a codicil executed in her last illness, in 1898, she left a large portion of her property, which had been acquired with the aid of her sons, to the

daughter, with whom she lived. In 1897, a few months before the codicil was executed, she made a will, dividing her property equally, and then stated that she did not want the daughter to know of it. There was evidence that decedent was over 70 years old at the time the codicil was executed, and was in such a state of health that at times she did not recognize intimate acquaintances. The will_of 1897 was not mentioned in the codicil. The codicil was made and witnessed at the urgent request of the daughter. After testator's death the daughter produced the will of 1895, and admitted that her mother had requested it to be returned to her, and stated that it had been lost. She denounced her mother for making the will of 1897 without her knowledge. Held sufficient to sustain a judgment setting aside the will of 1895 and the codicil.

3. Where the evidence is in irreconcilable conflict, a judgment will not be reversed where the evidence of the successful party, taken by itself, is sufficient to sustain the judgment.

Appeal from circuit court, Peoria county; F. M. Shaw, Judge.

Bill by Maud F. Kimmel and others against Jessie A. Keyes and others to set aside the will of Martha A. Kimmel. From a decree setting aside the will, defendant Keyes appeals. Affirmed.

This was a bill in chancery filed April 28, 1899, by Maud F. Kimmel and Nellie H. Kimmel, in the circuit court of Peoria county, Ill., against Jessie A. Keyes, Charles A. Kimmel, Charles E. Kimmel (a minor), and Charles A. Kimmel, as guardian of Charles E. Kimmel, defendants, contesting and seeking to set aside a will executed by Martha A. Kimmel, deceased, dated July 16, 1895, and a codicil thereto, dated February 26, 1898. The will and codicil were admitted to probate by the probate court of Peoria county, March 28, 1898, and letters testamentary were granted to Jessie A. Keyes. The bill alleges the execution of the writing July 16, 1895, by Martha A. Keyes, purporting to be her last will and testament, and of the codicil, as part thereof, February 26, 1898, and that she died at Peoria, February 30, 1898; that at the time of her death she owned real estate in Peoria county, and left surviving her no husband, but two children, defendants Jessie A. Keyes and Charles A. Kimmel, and three grandchildren, Maud F. Kimmel and Nellie H. Kimmel, complainants, and Charles E. Kimmel, defendant, the only heirs of Johnson F. Kimmel, her deceased son, who died intestate, and that no other parties are interested in the suit; that Charles A. Kimmel is married, and the other heirs and legal rep resentatives are unmarried; that Charles E. Kimmel is a minor, and Charles A. Kimmel is his guardian. The bill sets up the will, which, in effect, divides the property among Charles A. Kimmel, a son by a first marriage, Jessie A. Keyes, a daughter by a second marriage, and Charles E. Kimmel, a grandson, who receives a small portion, while the two granddaughters receive the sum of one dollar each Provision is made that, should Charles E. Kimmel not attain his majority, all money or estate testatrix had be

queathed him should go as follows: $200 to each of four persons named therein, and $200 to the Home of the Friendless of North Peoria. The codicil is as follows: "I now will and bequeath the part I in said will bequeathed to Charles E. Kimmel to be divided as follows: The lot on Knoxville avenue to belong solely to Charles E. Kimmel; the remainder of the share in said will bequeathed to Charles E. Kimmel to be divided equally between Charles E. Kimmel and his two sisters, Maud F. Kimmel and Nellie H. Kimniel."

The bill further alleges: That the testatrix, Martha A. Keyes, after the date of said original will, and before the date of the codicil thereto, to wit, on November 18, 1897, duly executed, and caused to be properly attested as her last will, another will, revoking said original will. That said will so probated was taken possession of by said Jessie A. Keyes, and that she concealed the same from the said Martha A. Keyes, and prevented her from destroying it, as she desired to do. That said Martha A. Keyes intended and designed to have said will of November 18, 1897, operate as and for her last will. That thereby she devised her estate, as follows: One-third part to said Jessie A. Keyes, onethird part to said Charles A. Kimmel, and one-third part, share and share alike, to the said heirs of Johnson Kimmel, deceased, to wit, a ninth part to each of these complainants, and one-ninth part to said Charles E. Kimmel. That said Jessie A. Keyes, knowing of the execution by her mother, Martha A. Keyes, of the will last above mentioned, and intending to defraud complainants and others out of the devises and bequests in said last-mentioned will, which were of the value of $80,000, and secure to herself more than one-half in value of said estate, and to deprive the complainants and said Charles E. Kimmel of all but one-twentieth part of said estate, used, exercised, and resorted to falsehood and misrepresentation to induce said Martha A. Keyes to attach a codicil to said original will, dated February 26, 1898. That said Martha A. Keyes was at said lastnamed date (the date of the making of the codicil, February 26, 1898) in her dotage, and was a paralytic, and in a dying condition, and her mind and memory were so impaired that she was wholly incapable, by reason thereof, to make any just distribution of her estate. That at the same time she was under improper restraint and undue influence of the said Jessie A. Keyes and others, and was influenced by the fraudulent arts, practices, and coercions of said Jessie A. Keyes and others. That said Jessie A. Keyes, by unkind conduct and harsh language to the said Martha A. Keyes, who was then under the care of said Jessie A. Keyes, and was an aged and confirmed invalid, weak in body and mind, and wholly helpless, induced the execution of said codicil without affording said Martha A. Keyes an opportunity to know or understand its effect or purport on the original will, or to sec or read said

will, whereby the said will so probated was not the will of the said Martha A. Keyes, but of her, the said Jessie A. Keyes. Alleges Charles E. Kimmel is a minor of the age of 16 years, and that Charles A. Kimmel is his guardian. Prays for the appointment of a guardian ad litem, and that said last will and testament may be set aside.

Charles A. Kimmel answered said bill, admitting the death of Johnson F. Kimmel, son of Martha A. Keyes, in June, 1892, intestate, leaving Maud F., Nellie H., and Charles E. Kimmel his only heirs at law; admits the heirship; admits that Martha A. Keyes executed her last will on the 18th day of November, 1897, and charges that, for fear said Jessie A. Keyes would get possession' of and destroy it, she deposited it with one William A. Herron, of the Peoria Savings Bank, and at the time of leaving said will cautioned him not to tell said Jessie A. Keyes thereof, as she would make her, said Martha A. Keyes, trouble for so doing, without having first obtained the consent of said Jessie A. Keyes and submitting the provisions thereof to her for approval; admits the marriage of Martha A. Kimmel with Andrew Keyes in 1858; that he lost his property afterwards, and became a charge upon Martha A. Keyes; that Martha A. Keyes, with the advice of her sons, Johnson F. and Charles A., bought the premises in controversy for $3,500; that the same became valuable, and are now worth $40,000; that with the exception of a few hundred dollars the earnings of Johnson F. Kimmel, assisted by defendant Charles A., paid for said premises, and supported the family, consisting of their mother and Jessie A. Keyes, until the latter became of age, 22 years ago; avers that said will and codicil were obtained by compulsion and undue influence, and should be set aside.

Jessie A. Keyes filed a separate answer, admitting the death of Martha A. Keyes, and averring that the will of Martha A. Keyes, dated July 16, 1895, together with the codicil, was in truth and fact the last will of Martha A. Keyes; denies she ever executed any other will as her last will, or that she ever revoked said probated will; denies she ever took possession of said will purporting to be the last will of Martha A. Keyes, and thereby prevented her from destroying it, etc.; denies she knew of the execution of said alleged will; denies intention to defraud the complainants and others, or that she attempted to secure to herself the greatest share of the estate; denies she used or exercised undue influence, or resorted to falsehood and misrepresentation. to induce said Martha A. Keyes to attach a codicil to said original will; denies she was under improper restraint and undue infuence, and denies she induced the execution of said codicil without affording her an opportunity to know or understand the same: and denies all fraud and undue influence as charged in the bill. The answer of defend