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(148 N.E.) were likely to be passing. In Wabash Rail- | with 2 engines and 34 cars, reached that point road Co. v. Jones, supra, it was said:

the engineer, seeing in the darkness for the "The fact of general use by the public of a

first time the red light on the rear of the track, so as to create a probability of their train standing at the depot, attempted to lesspresence, might make an act, which would oth

en the speed of his train, but was unable to do erwise be merely negligent, so reckless as to

so to any considerable extent, and it struck indicate a disregard for life or a general dispo- the standing train, telescoping the caboose sition to do injury.”

and killing the deceased. It was insisted by

the railroad company that the deceased was a In the cases of Peirce v. Walters, supra, trespasser. The court, however, did not think and Chicago Terminal Railroad Co. v. Koto- it necessary to consider that question, but ski, supra, the servants of the railroad com-held that whether he was a trespasser or not, pany were aware of the position of the plain- | the company would be liable if he was killed tiff and his danger, and in the case of Illinois | through the wanton or reckless conduct of the Central Railroad Co. v. King, supra, a brake-company's employees. The court held that it man of the defendant discovered the plaintiff was a question of fact to be determined by stealing a ride on the rods under a freight the jury whether the deferdant was guilty of car, and, as the train was running 6 or 8 willful or wanton conduct causing the injury. miles an hour, ran alongside the car, caught In Neice v. Chicago & Alton Railroad Co., the plaintiff by the coat collar, pulling him supra, it is said that, if persons on depot out, and, in so doing, the right foot of the grounds and platforms provided by the railplaintiff was run over and crushed so that road company for the use of the public in the it had to be amputated. In these cases the transaction of its business “are there for a defendants were held liable for the willful legitimate purpose in connection with the and wanton acts of their servants.

business of the company, they have a right to Illinois Central Railroad Co. v. Leiner, su- demand the exercise of reasonable care for pra, is a case of a different character, not their safety. If they are simply idlers, loiterdifferent in principle from the present case, ers, or trespassers, the duty of the company is It was an action by an administrator for the only to abstain from willfully or wantonly indeath of his intestate, who was a freight con- juring them. But the duty is owing to an ductor of the defendant. He had arrived at indeterminate part of the public generally, East St. Louis with his train on a Saturday and, if there is a disregard of that duty, one night, and, desiring to ride to his home in of the general public who happens to be in Sparta to spend Sunday, obtained a pass per- such position as to be the sufferer from the mitting him to ride on a certain passenger violation of the duty will have a right of actrain leaving East St. Louis at about 9 o'clock, tion for any injury he sustains. To run a but too late for him to take the train. He train in the nighttime over unlighted stathen applied for transportation to the conduc- tion grounds without a headlight, and withtor of a freight train, which was not author- out any warning by bell or whistle, along a ized to carry passengers, but the conductor, platform where persons may reasonably be without requiring any evidence of his right to expected to be, is evidence tending to prove a travel on the freight train, permitted him to wanton and reckless disregard of the safety do so and he went to sleep in the caboose. of such persons. In such a case it is not necWhile he was asleep in the caboose, the train essary that there should be specific knowledge arrived at Belleville, where, after standing of an individual on the track or platform or on the main track about 20 minutes, it was specific ill will toward or an intention to inrun into by a following train running at a jure an individual." high rate of speed in violation of a rule of the [5, 6] The duty which a railroad company company requiring the following train to ap- owes to a trespasser before it has knowledge proach the station at which the first train of his presence or danger is not to do any was standing under control expecting to find willful or wanton act to injure him. This the main track occupied, and also in violation duty, as was said in the Neice Case, supra, is of an ordinance of the city of Belleville limit- owing to the public generally, and is applicaing the speed of the train to 6 miles an hour. ble to any one of the general public who The flagman of the train on which the de- happens to be in such a position as to be the ceased was riding was also required by a rule sufferer by the violation of the duty, and such of the company to go back 3,600 feet and sufferer will have a right of action for any protect the train, but, though the conductor injury he sustains. The case of East St. called his attention to the fact that there was | Louis Connecting Railway Co. v. O'Hara, an extra train following them and told him supra, is an illustration of this rule, in which to keep his eyes open, the flagman did not go it was held that, where the defendant was back and protect the train, but got on the running its engine in wanton and willful train and went forward to the office in the disregard of the rights and safety of the station to get orders. There was a sharp public generally, is was not necessary, in curve about 1,500 feet west of the station, order to raise an inference of wanton and from which there was a downgrade to the willful negligence, to prove that the defendstation of 1 foot in 100, and when the train, ant's servants were actuated by ill will direct

148 NE.--55

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ed specifically toward the plaintiff, or to have | nal, to testify that he told the train dispatchknown that he was in such a position as to er that the train had run by his signal and be likely to be injured.

that the train dispatcher called the operator [7] If there is any evidence in the record at Rankin to inquire if the east-bound train fairly tending to show such a gross want of had left. All these things occurred after care as indicates a willful disregard of conse | the train had gone west, and the evidence quences or a willingness to inflict injury, then was of no importance to the issue, but its it is a question to be determined by the jury admission could not have confused the issue whether the negligent conduct of the defend- or prejudiced the defendant. ant amounted to wantonness or willfulness. Complaint is made of instructions given Walldren Express Co. v. Krug, 291 Ill. 472, and refused, but the rulings of the court were 126 N. E. 97.

in accordance with the views of the law [8] What degree of negligence the law con- which have been expressed. The action was siders equivalent to a willful or wanton act not for mere negligence, but for willful and is as hard to define as negligence itself, and, wanton injury. Whether it was such willin the nature of things, is so dependent upon ful and wanton injury was a question of the particular circumstances of each case as fact to be determined by the jury. The innot to be susceptible of general statement. structions of the plaintiff in error and its The gross negligence which will justify the argument here are based upon the theory presumption of willfulness or wantonness is that there was no duty owing to the deceased such as to imply a disregard of consequences until his presence in a place of danger was or a willingness to inflict injury. Lake Shore known and there was no evidence of a will& Michigan Southern Railway Co. v. Bode- ful or wanton injury. In the discussion of mer, supra.

the motion to direct the verdict, we have [9] An intentional disregard of a known held to the contrary of that theory. duty necessary to the safety of the person, [12] It is contended that the court erred and an entire absence of care for the life, the in sustaining the demurrer to the special person or the property of others, such as ex- plea, which alleged that Shircliff at the time hibits a conscious indifference to consequenc- of his death was not a citizen or resident of es, makes a case of constructive or legal will- Illinois, but was a citizen and resident of fulness such as charges the person whose Indiana, whose domicile was in Benton counduty is was to exercise care with the conse- ty, in that state, where administration had quences of a willful injury. 1 Thompson on been granted upon his estate by the circuit Negligence, 88 20, 22.

court of that county; that at the time of his [10] The train was running through a death he owned no real or personal estate heavy fog at a high rate of speed. It was the in Illinois and no rights or credits that were duty of the engineer to note the signal to stop liable to be dissipated; and that no copdifor orders, and it was highly important to the tions existed under the law authorizing the safety of the property of the railroad com- appointment of the public administrator of pany and of shippers whose goods the trains Vermilion county, Ill., administrator of his were carrying, and the lives and safety of estate. The probate court has jurisdiction the train crews, as well as any other persons of the appointment of administrators, and its who might be on the trains, that the persons order granting letters is not open to colin charge of the trains should receive the or- lateral attack on the ground that decedent ders and know that the tracks were clear be- was not a resident of the county. Balsewicz fore they proceeded. It was for that purpose v. Chicago, Burlington & Quincy Railroad Co., that the signal system was installed, and the 240 11l. 238, 88 N. E. 734; Keystone Steel observance of the rules in regard to signals & Wire Co. v. Industrial Com., 289 Ill. 587, was the only safety for persons engaged in 124 N. E. 542. the operation of the trains or on the trains. [13, 14] The plaintiff in error contends The observance of the duty was essential to that the conduct of the attorneys of the dethe safety of the trains and of all property fendant in error in the argument of the case and persons on them. There was evidence was of such a character as to inflame the tending to show that the failure to heed the passions of the jury and prejudice the plainsignal was the result of willful purpose, and tiff in error in the consideration of the eviit was a question of fact for the determina dence. The only thing objected to as to tion of the jury whether the evidence showed which there is a ruling of the court which that the negligence of the defendant was of we are asked to review is in connection with that gross character which evidences will. the statement of the attorney for the defendfulness or wantonness.

ant in error that the attorney for the plain[11] The plaintiff in error contends that tiff in error told the jury that the deceased the court erred in permitting the agent at was a “hobo," and the contradictory state. East Lynn to testify that he heard the train ment of the attorney for the defendant in dispatcher give the order to the agent at error that the man was not a hobo, but was Rankin and heard the latter repeat the order, "an ordinary, honest, humble laboring man, to give his opinion as to the rate of speed trying to make an honest, humble living for of the train at and after running by the sig- his wife and little baby, as under the law

(148 N.E.) he had a right to do, and it ill becomes hired Appeal from Champaign County Court; counsel upon behalf of the railroad, on ták- Roy C. Freeman, Judge. ing the life of this father, this husband, to

Petition by the Trustees of Schools and othgo before a jury and say he is a hobo, when

ers to condemn land of Norman C. Hoyt for
they knew better. They know he has been schoolhouse site. Judgment for defendant,
in their employ.” The attorney for the plain and petitioners appeal. Affirmed.
tiff in error had argued that the deceased's

See, also, 311 Ill. 532, 143 N. E. 59.
relation to the plaintiff in error and its ser-
vants was the same as that of any hobo who

Williamson & Winkelman, of Urbana, and
was stealing a ride on the train. Whether Jones, McIntire & Jones and Hall & Holaday,
the deceased was actually a hobo or not was all of Danville (O. M. Jones, of Danville, and
not material to the issue, but the fact that A. R. Hall, of Chicago, of counsel), for ap-
he was a laboring man in the employ of the pellants.
company, supporting his family by his work,

Green & Palmer, of Urbana (Henry I. and not a hobo, was a matter to be consider-Green, Oris Barth, and Charles G. Howard, ed by the jury in estimating the damages all of Urbana, of counsel), for appellee. if a verdict should be found for the plaintiff, and we do not regard the language used DUNN, C. J. This cause was before the as being calculated to unfairly prejudice court at the December term, 1923. The prothe plaintiff in error before the jury. ceeding was a petition to condemn land for The judgment will be affirmed.

a schoolhouse site. The owner of the land Judgment affirmed.

objected to the condemnation, because of the lack of the statutory conditions authorizing the exercise of the power of eminent domain;

but his motion was denied, and after a trial (318 III, 60)

a judgment of condemnation was rendered, TRUSTEES OF SCHOOLS et al. v. HOYT, from which he appealed. While other ob(No. 16382.)

jections were raised on the record, the judg.

ment of reversal was based solely on the lack (Supreme Court of Illinois. June 18, 1925. Rehearing Denied Oct. 8, 1925.)

of power of the board of education to call

the election to vote on the proposition to lo1. Appeal and error (198–Trial court, aft. cate and purchase a schoolhouse site, and

er remand, cannot err in following Supreme the judgment of the county court was reCourt's direction.

versed, and the cause was remanded. with Where judgment is reversed and cause re directions to dismiss the petition. On the manded, with specific directions as to action to reinstatement of the cause in the county be taken by trial court, under Practice Act, 8 court, the petitioners made a motion for leave 110, it is latter's duty to follow those directo amend the petition and for another heartions, and it cannot err in doing so,

ing, with leave to introduce further evidence. 2. Appeal and error em 1097(1) if lower The defendant made a cross-motion for a court substantially followed Supreme Court's judgment dismissing the petition. The court directions after remand, judgment must be overruled the motion of the petitioners, and afirmed.

entered a judgment for the defendant, disWhere only question on second appeal in missing the petition. same case is whether lower court followed di

[1] It has been held in numerous cases in rections of Supreme Court, if lower court substantially followed such directions, judgment and the cause is remanded, with specific di

this court that, where a judgment is reversed must be affirmed.

rections as to the action to be taken by the 3. Pleading mw433(4)-Defects of substance trial court, it is the duty of that court to fol

not aided by statute of amendments and jeof. low those directions, and that it cannot err ails,

in doing so. Boggs v. Willard, 70 nl. 315, Notwithstanding statute of amendments and 22 Am. Rep. 77; Windett v. Ruggles, 151 jeofails by section 1 authorizes amendments be- n. 184, 37 N. E. 1021; Roby v. Calumet fore judgment, and by section 2 after judgment, | & Chicago Canal & Dock Co., 154 Ill. 190, 40 amendments after judgment are authorized in matter of form only in affirmance of judgment,

N. E. 293 Where à cause is remanded by and defects of substance are not aided by the the Supreme Court, the trial court cannot statute.

err if it follows the opinion of the Supreme

Court in the further proceedings of the case, 4. Appeal and error 1097(1)-Judgment of trial court, entered under mandate and direc- and no attention will be given to arguments tion of Supreme Court, is conclusive.

that it erred in so doing. Manternach v, Judgment or decree, entered by trial court Studt, 240 Ill. 464, 88 N. E. 1000, 130 Am. St. in accordance with mandate and direction of Rep. 282. “A decree entered in accordance Supreme Court, is final and conclusive on all with the directions of this court cannot be parties, as if it had been entered in Supreme

This court may érr in its direcCourt.

tions to an inferior court, but, however er

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roneous the directions given may be, it is the , This court may in any case, either at law or duty of the inferior court to strictly follow in equity, render final judgment, as provided the directions contained in the mandate of by section 110 of the Practice Act (Smiththis court. Blackaby v. Blackaby, 189 Ill. | Hurd Rev. St. 1923, c. 110, $ 110), or in case 342; Noble v. Tipton, 222 III. 639.

of a reversal may remand the cause to the [2] The only question, therefore, that is inferior court. The court, on reversing the open for consideration on the record as pre judgment or decree and remanding the cause, sented at this time is, Was the decree of the may direct the inferior court to enter a parcircuit court in accordance with the mandate ticular judgment or decree, or give directions and directions of this court?" Chicago Rail- which will have that effect, and the trial way Equipment Co. v. National Hollow court is then bound by the decision and manBrake Beam Co., 239 Ill. 111, 87 N. E. 872. date of this court. The judgment of this Where the only question on a second appeal court is final and conclusive on the parties, in the same case is whether the lower court and it is the duty of the trial court to conhas followed the directions of the Supreme form its action to the opinion and mandate Court, if the lower court has substantially of this court. Prentice v. Crane, 240 IU. 250, followed such directions, the judgment must 88 N. E. 654. be affirmed. People v. Day, 279 Ill. 148, 116 In this case the judgment was on the merN. E. 729. There are many other decisions its, finding that the statutory conditions auwhich hold that, where a judgment has been thorizing the exercise of the power of emireversed and the cause remanded, with spe- ! nent domain did not exist, and that therecific directions, the only question on a sec- fore the petitioners could not maintain the ond appeal is whether the action of the trial proceeding and the court should have suscourt was in accordance with the mandate tained the objection to the petition, and the and directions of this court.

cause was remanded, with directions to dis[3] The appellants argue that the statute miss the petition. The judgment of the coungives the right to amend pleadings at any ty court, merely carrying into execution the time, even after judgment, and insist that judgment of this court, was the only judgamendments may be made in the trial court, ment which it had any authority to enter, if the judgment has been reversed and the and it will be affirmed. cause remanded, with directions to enter a

Judgment affirmed. particular judgment. The statute of amendments and jeofails does by section 1 (SmithHurd Rev. St. 1923, c. 7, § 1) authorize

(318 Ill. 48) amendments before judgment, and by section

HARDIN v. WOLF et al. (No. 16419.) 2 (Id. & 2) after judgment; but amend- (Supreme Court of Illinois. June 18, 1925. ments made after judgment rendered are

Rehearing Denied Oct. 8, 1925.) authorized in matter of form only, in affirmance of the judgment, so that such judg. 1. Appeal and error Om 80(3) — Partition de.

cree, declaring interest of parties and apment shall not be reversed or annulled. De

pointing commissioners, is final and appeal. fects of substance are not aided by the stat

able. ute of amendments and jeofails. Foster v.

Decree in partition, which finds and declares Oberreich, 230 Ill. 525, 82 N. E. 858; Schuel- several interests of parties and appoints comer v. Mueller, 193 Ill. 402, 61 N. E. 1044; missioners, is final and appealable. Chicago & Alton Railroad Co. v. Clausen, 173 Ill. 100, 50 N. 5. 680. “When a judgment is 2. Courts fm 219(23)—Partition suit held to

involve freehold estate. affirmed by this court all questions raised by the assignments of error and all questions either in joint tenancy or as tenants in com

Where parties to partition suit hold title that might have been so raised, are to be re

mon, since, if partition should be effected, title garded as finally adjudicated against the ap of each cotenant would be transferred to parpellant or plaintiff in error. A judgment or cel allotted to him, and, if property is sold, all decree having been affirmed by this court estate and title are transferred to purchaser, a must be regarded as free from all error. freehold is necessarily involved. Gould v. Sternberg, 128 11. 510." People v. 3. Joint tenancy Cwmt_Trust deed to stranger Superior Court, 234 Ill. 186, 84 N. E. 875,

effects severance of tenancy. 14 Ann. Cas. 753.

Execution and delivery of note and trust [4] A judgment or decree entered by a deed to a stranger by one joint tenant, if valid, trial court in accordance with the mandate effects severance of joint tenancy. and direction of this court must be regarded 4. Joint tenancy Jam 4-Execution of trust deed as equally free from all error. Such a judg

heid, under evidence, not intended to effect ment is final and conclusive upon all the severance of tenancy. parties, the same as if it had been entered

Evidence held to show that execution of in this court, and it is, in fact, the judgment note and trust deed by one joint tenant to nomof this court promulgated through the trial inal parties representing the other joint tenant court. People v. Gilmer, 5 Gilman, 242. was not intended to effect severance of joint

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(148 N.E.) tenancy, but to protect the other tenant against y notes secured thereby." Mary J. and John transfer of interest by terant executing them. J. Wolf interposed a demurrer to the bill, 5. Partition 22-When partition denied, be. and assigned as the cause therefor that the cause of agreement not to partition, stated.

owners of the note for $3,500 were necessary Equity will not award partition between

parties defendant, The demurrer was susfather and daughter, where in creating joint

tained. tenancy, they intended to provide a home for Pursuant to leave granted, William B. themselves during their joint lives, and that O'Brien filed an intervening petition, in property should go to survivor, and agreement which he alleged that he was the legal holdto that effect might be verbal, if acted on, or

er and owner of the promissory note secured might be implied.

by the trust deed to James E. O'Brien, that Appeal from Superior Court, Cook County; that no part of the interest on or the prin

he acquired title thereto from Hardin, and Oscar Hebel, Judge.

cipal of the note had been paid. By his peBill by Mark Hardin against Mary J. Wolf tition he admitted the allegations of the bill and others, in which William B. O'Brien in- of complaint, submitted himself to the jutervened. From a decree of partition, cer- risdiction of the court, and asked that his tain defendants appeal. Reversed and re- interest in the premises might be declared. manded, with directions.

On July 27, 1923, Hardin amended his bill, Dwight McKay and Wharton Plummer, the legal holder and owner of the note for

by charging that William B. O'Brien was both of Chicago, for appellants.

$3,500, and making him a party defendant O'Brien, Rutledge & Hayes, of Chicago,

thereto. for appellee.

Mary J. Wolf filed an answer, in which

she averred, among other things, that the DE YOUNG, J. Mark Hardin on April 27, joint tenancy set forth in the bill of com1923, filed a bill for partition in the superior plaint was created pursuant to an agreement court of Cook county against Mary J. Wolf, between her father and herself, the joint John J. Wolf, her husband, and James E.

tenants; that the premises should be used O'Brien, in which it is alleged that on Sep- and occupied by them as their home.during tember 27, 1916, James C. Byrne, a bachelor, conveyed to Hardin and Mary J, Wolf, his their joint lives; that he, during the remaindaughter, as joint tenants and not as tenants der of his life, should have her services as in common, a certain lot in the city of Chi- housekeeper; that upon the death of either cago; that the lot is improved by a two- the whole property should belong to the surstory brick building which contains a store vivor; and that neither, after the resting of and undertaking room on the first floor and the title in them in joint tenancy, should sell, an apartment above, occupied by Hardin and convey, incumber, divide, or partition the Mrs. Wolf; that they, as joint tenants, are property or their interests therein, or do anythe owners of the premises, with the right thing to terminate their use and occupancy to the sole survivorship in the surviving ten- of the premises during their joint lines, or aut; that the undivided interest of Mrs. (the vesting of the title thereto in the surWolf is subject to the lien of a trust deed vivor. Mrs. Wolf further avers in her anto O'Brien, dated and recorded on September swer that her father, her husband, and her28, 1916, made to secure the payment of a self have, since the deed in joint tenancy certain note of even date, executed by Mary was executed, occupied the premises as their J. and John J. Wolf, for $3,500, payable to home; that she has performed the required their own order, and indorsed and deliver- services as housekeeper, given her father ed, due in 10 years after its date, with in the necessary personal care and attention, terest at 5 per cent. per annum, payable kept the premises in good repair at considsemiannually; that Hardin and Mrs. Wolf erable expense, and fully performed the are each entitled to an undivided one-hall agreement on her part; that she has not interest in the premises, subject to the home- sold, conveyed, incumbered, divided, or parstead estate of the other, and that the share titioned the premises or her interest thereof Mrs. Wolf is further subject to the in- in, nor has she suffered any judgment to be terest of O'Brien as trustee. The prayer of recovered against her; that she has done the bill asked that the interests of the par- nothing to interfere with or terminate the ties be declared, that commissioners be ap- use and occupancy of the premises by her pointed to make partition, that in the event father as a home or the vesting of the title partition could not be made the premises in him in the event of her prior death; and be sold and the proceeds divided, and that that the instant suit is a violation of their the interest of Mrs. Wolf or her share of the agreement, and an attempt to oust her from proceeds be charged with the lien of the the enjoyment of the premises, and to pretrust deed, “and the rights of the unknown vent her from obtaining the title thereto in owner or owners, holder or holders, of the case she survives her father. In her answer

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