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measured from the west line of the avenue and that it was from 11 to 2 feet from and that no part of it was in the avenue. the line insisted upon by complainant. It It is true, the defendant owned the fee to is most improbable that a mistake of 30 feet the center of Prospect avenue; but it is not or more was made in putting up the fence, usual in purchasing city property, although and that he intended to put the fence 100 the fee of a street is not in the municipality, feet from the avenue, instead of 130 or more, to include in the size of the lot the portion

as it was actually built. Such a mistake in the street, the fee to which is practically could hardly have occurred and remained worthless.

unnoticed for such a length of time. It is contended, however, that when the The court did not enter any decree for the first contract was written complainant's

specific performance of the contract, but husband understood that the lot extended merely reformed it by correcting the misto the middle of the avenue. Defendant

take, and enjoined defendant from maintestified that it was then stated that the taining his ejectment suit or any other suit description began in the middle of the street.

except in pursuance of the contract as reComplainant was not present, but her hus

formed and corrected, and we think the court band, who was present, denied that any

did not err in so doing. thing of that kind was said or that he saw

The decree is affirmed. the sketch in the atlas. The solicitors for the

Decree affirmed. complainant both testified in behalf of their client on that question. One of them coulil not say that Mr. Bohrer saw the sketch

(222 Ill. 480) extending to the middle of the street, but

ILLINOIS CENT. R. CO. v. BAILEY. it was his impression that all the parties were looking at it. The other solicitor, who (Supreme Court of Illinois. Oct. 23, 1906.) examined the witnesses before the master, 1. RAILROADS — FIRES-NEGLIGENCE - PRIMA testified positively that Bohrer saw the FACIE CASE. sketch. As the agreement was for the pur

In an action against a railroad for setting chase of a lot adjoining the avenue which had

fire to a building, plaintiff's witnesses testified

that an engine drawing a passenger train disbeen measured and located by the parties, charged sparks, and that, when the engineer it would require the most positive and con started the engine, the wheels slipped and vincing proof to establish the fact that

whirled around and a volume of sparks was

emitted and blown toward the building. The fire Mr. Bohrer understood that the contract

was first seen on the shingled roof of the buildwas being made for a lot two rods of which ing. Held sufficient to establish a prima facie was in the street and which subsequently

case entitling plaintiff to judgment unless it had two rods less of depth from the street.

should be overcome by the evidence of defendant, We are satisfied with the conclusion of the

[Ed. Note.-For cases in point, see vol. 41,

Cent. Dig. Railroads, SS 1730, 1731.] circuit court that he did not understand,

2. SAME-QUESTION FOR JURY. from anything that took place in the attor

Where, in an action against a railway comney's office, that the contract was being pany for setting fire to a building, plaintiff eswritten for a different lot from the

the one

tablished a prima facie case of negligence, and purchased.

the evidence of the railroad company showed

that it had done all that the law required of it It is insisted that, even if the description in the equipment and management of the enin the contract did not correspond with the gine, the question whether plaintiff's prima facie actual agreement, there was no mutual mis

case was overcome was for the jury. take, for the reason that defendant testified

[Ed. Note.-For cases in point, see vol. 41,

Cent. Dig. Railroads, § 1741.] he was not mistaken. There are two con

3. TRIAL-PEREMPTORY INSTRUCTIONS-RIGHT clusions that might be drawn from the evi

TO GIVE. dence--either that there was a mutual mis A peremptory instruction can only be given take in drawing the contract, or that the where the evidence, with all the inferences, is so defendant then intended to defraud the com

insufficient to support a verdict that the verdict

must be set aside on that ground. plainant by having the contract drawn as

[Ed. Note. For cases in point, see vol. 46, it was. It would be less creditable to him to

Cent. Dig. Trial, $$ 376–380.] assume that he intended a fraud than to

4. APPEAL-FINDING OF APPELLATE COURTadopt the theory that he intended to have the CONCLUSIVENESS. contract drawn according to the agreement A judgment of the Appellate Court affirmand to convey the property which he had

ing a judgment of the trial court settles the

controversy as to whether the verdict is against agreed to convey, but afterward concluded

the weight of the evidence. that he would take advantage of the manner 5. RAILROADS-FIRES — EVIDENCE ADMISSIin which the contract was drawn. At any BILITY-SIMILAR OCCURRENCES. rate, his subsequent conduct would lead us

Where, in an action against a railway comto adopt the first conclusion. He put the

pany for setting fire to a building, the evidence

identified the engine from which it was claimed fence practically on the line of the lot that that the sparks setting the fire escaped, and he agreed to sell, and it remained there for there was no evidence that the fire was comabout a year and a half without any ques

municated by any other engine, it was error te

permit a witness to testify that at another time tion on his part. He claimed on the hear

he had seen sparks emitted by another engine. ing that the fence was put there by a mis

[Ed. Note. For cases in point, see vol. 41, take in line with the fence of a neighbor, Cent. Dig. Railroads, § 1720.]

78 N.E.-53

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forming the jury that the fact of fire being communicated to a building by an engine of the company might be established by proof of circumstances giving rise to an inference of that fact, provided such circumstances constituted a preponderance of the evidence, was not erroneous as argumentative.

Appeal from Appellate Court, Fourth District.

Action by T. L. Bailey against the Illinois Central Railroad Company. From a judg. ment of the Appellate Court affirming a judgment for plaintiff, defendant appeals. Affirmed.

W. W. Barr, F. M. Youngblood, and R. J. Stephens (J. M. Dickinson, of counsel), for appellant. William A. Schwartz, Hosea V. Ferrell, and Andrew S. Caldwell, for appellee.

6. APPEAL HARMLESS ERROR

ERROR - ERRONEOUS ADMISSION OY EVIDENCE.

Where the court, in an action against a railway company for setting fire to a building, directed the jury not to consider the evidence of a witness testifying that he had seen another engine at another time emit sparks, the error in admitting the evidence was cured.

[Ed. Note.--For cases in point, see vol. 3, Cent. Dig. Appeal and Error, $$ 4179, 4180.] 7. RAILROADS-FIRES — NEGLIGENCE — PRIMA FACIE CASE.

One suing for a fire set by a railway company is entitled to the benefit of the rule of evidence as to what will constitute a prima facie case to charge the company with negligence, though the fact that the fire was communicated from an engine is controverted.

[Ed. Note.For cases in point, see vol. 41, Cent. Dig. Railroads, $$ 1730-1733.] 8. SAME-INSTRUCTIONS.

Where, in an action against a railway company for setting fire to a building, the evidence showed that the fire was set by sparks from an engine, and that the fire was communi. cated finally to plaintiff's building, an instruction requiring the jury, before finding for plain. tiff, to believe that sparks were emitted from the company's engine and communicated to a building, and that the fire was communicated successively to other buildings, and finally to plaintiff's building, and that the fire so communicated was the natural and proximate cause of the burning of plaintiff's property, and advising the jury what facts would be prima facie evidence of negligence on the part of the company, unless it appeared that the engine was in good order and was properly handled at the time of the fire, was not erroneous.

[Ed. Note. For cases in point, see vol. 41, Cent. Dig. Railroads, 88 1750–1756.] 9. SAME.

Where, in an action against a railway company for setting fire to a building, the evidence of the improper handling of the engine emitting sparks at the time of the fire was that the wheels slipped in starting, and the witnesses for the company testified that such slipping was liable to happen to any engineer and was not evidence of improper management, an instruction that defendant would be liable, though the engine was equipped with the most approved appliance to prevent the escape of fire, if the servants in charge of the engine negligently managed it so as to cause sparks of fire to escape, properly submitted to the jury the question of negligence in the management of the engine.

[Ed. Note. For cases in point, see vol. 41, Cent. Dig. Railroads, $$ 1753.] 10. SAME.

Where, in an action against a railway company for setting fire to a building, the instructions given at the request of the company were based on the hypothesis, that the engine alleged to have emitted sparks causing the fire was equipped with the best and most approved spark arrester, and that the highest degree of care was exercised to keep the same in order, and there was no question in the case of any new invention which was claimed to surpass the spark arrester in use, an instruction that, if the engine, though carefully managed, was not equipped with the best and most approved appliance for arresting sparks, and for that reason sparks were thrown on the building, the company was liable, was not open to the objection that it stated the duty of the company too strictly in requiring it to have the best and most approved appliance, while it was only required to exercise a very high degree of skill in that regard. 11. TRIAL-ARGUMENTATIVE INSTRUCTIONS.

An instruction in an action against a railway company for setting fire to a building, in

CARTWRIGHT, J. Appellee brought this suit in the circuit court of Jackson county against appellant to recover the value of a store building, and a stock of merchandise therein situated, in the village of Makanda, which were destroyed by fire on October 10, 1899. There was a verdict for $5,000 damages, on which judgment was entered, and the judgment was affirmed by the Appellate Court for the Fourth district.

The defendant asked the trial court to direct a verdict of not guilty, and, the court having refused to do so, the defendant excepted to the ruling. It is not contended that the evidence offered by the plaintiff, with the reasonable inferences to be drawn from it, was not sufficient to prove that the fire which destroyed plaintiff's property was communicated by defendant's locomotive engine to a store building, from which it spread through intervening buildings to the plaintiff's property, but it is contended that the prima facie case so made was completely overcome and rebutted by uncontradicted evidence offered by defendant that the engine was equipped with the best and most approved appliance for preventing the escape of sparks and fire, and was in charge of an experienced and careful engineer, who carefully handled and operated it at the time. Defendant's railroad runs north and south through the village of Makanda, and before the fire there was a row of store buildings at the base of a very high hill parallel with the railroad track and about 140 feet east of such track. About 9 o'clock in the morning a passenger train went south in two sections. The first section was drawn by engine No. 941, and it was followed in about 10 minutes by the second section, drawn by engine No. 912. From 10 to 30 minutes after the second section of the train had passed fire was seen coming from the roof of an old unoccupied building near the south end of the row, known as the Rendleman building, which had been used as a restaurant. That building was burned and the fire was communicated to four other intervening build

ings, when it reached plaintiff's property and court, against the objection of the defendant, destroyed the building and contents. The permitted a witness to testify that at another weather was very dry and the wind was time he had seen sparks coming out of some blowing from the southwest. Witnesses for other engine owned by the defendant, and the plaintiff testified that the engine on the had seen a hole in a man's hat, and a cinder second section discharged sparks and burn on top of it which looked like a coal cinder. ing cinders, and when the engineer started The engine had nothing to do with either the engine the wheels slipped and whirled section of this train, and the incident being around and a volume of sparks and cinders at another time the court erred in the ruling. was emitted and blown toward the Rendle First Nat. Bank v. Lake Erie Western Railman building. The fire was first seen on the road Co., 174 Ill. 36, 50 N. E. 1023. That south side of the shingle roof of that build case does not hold, as insisted upon by couning. This evidence fairly tended to prove sel for the defendant, that it is within the that the fire was communicated to the discretion of the court to admit incompetent Rendleman building from defendant's engine, evidence, but in this case, the court being and it was sufficient to make out a prima afterward satisfied that the evidence was infacie case under the statute which entitled competent, excluded it, and directed the jury the plaintiff to judgment unless it should be not to consider it. It appears to us from the overcome by the evidence for the defendant. record that the error was thereby cured. Chicago & Alton Railroad Co. v. Glenny, 175 Several instructions given at the request Ill. 238, 51 N. E. 896. The court therefore of the plaintiff are complained of. The first would not have been justified in setting gave to the jury the statutory rule of eviaside the verdict and awarding a new trial dence as to what will constitute a prima for a want of evidence to support the dec facie case to charge the defendant with laration.

negligence, and the second applied that rule There was evidence for the defendant that to the case, and both are objected to on the it had done all that the law required of it ground that the statutory rule is only appliin the equipment and management of the cable where the fact that the fire was communiengine, but the question whether the prima cated from an engine is undisputed or unconfacie case of the plaintiff was overcome troverted. No fault is found with the rule, but depended upon the credibility of the wit the argument is that it is not to be applied nesses, a weighing of the evidence, and a where the fact as to the fire being communidecision as to where the preponderance lay. cated from an engine is in dispute or controIt is not correct to say that in every case verted. We do not understand that the appliwhere the court can see that a verdict for cation of the rule is dependent on the question the plaintiff, if returned, must be set aside, whether the defendant admits the origin of a peremptory instruction should be given. the fire or not. The plaintiff is entitled to An attentive reading of the decisions of this the benefit of the rule if he produces evidence court will show that such an instruction can sufficient to satisfy the jury of the fact. only be given where the evidence given at The second instruction required the jury to the trial, with all the inferences that the believe, from the evidence, that fire and jury could reasonably draw from it, is so cinders were emitted from defendant's eninsufficient to support a verdict for the plain- gine and were communicated to the Rendletiff that the verdict must be set aside on man building; that the fire was communithat ground. It is not authorized where cated successively to the buildings situated a prima facie case sufficient to support a between the Rendleman building and plaincause of action is, in the judgment of the tiff's building, and from thence to plaintiff's court, overcome by contrary evidence. If the building, and destroyed it; and that fire court would be bound to set aside a verdict, so communicated by defendant's engine was when returned, for want of evidence suffi the natural, direct, and proximate cause of cient to support it, only the evidence favor the burning of plaintiff's property. It adable to the successful party being considered, vised the jury that such facts would be full a peremptory instruction should be given. prima facie evidence of negligence on the Woodman v. Illinois Trust & Savings Bank, part of the defendant unless it further ap211 III. 578, 71 N. E. 1099. But if there is peared, from the evidence, that the engine substantial evidence tending to prove the was in good order and was properly handled cause of action alleged, the instruction should and managed at the time of the fire. The not be given. The court did not err in re court did not err in giving those instructions. fusing to direct a verdict of not guilty, and The third and fourth instructions are obthe controversy as to whether the verdict jected to on the ground that they had no supwas against the weight of the evidence ended port in the evidence and were argumentative with the Appellate Court.

and misleading. The principle stated in the The evidence identified the engine from third was that the defendant would be liwhich it was claimed that the sparks and able to the plaintiff although the engine fire escaped as the engine drawing the second was equipped with the best and most apsection of the train. There was no evidence proved appliance to prevent the escape of fire fairly tending to prove that the fire was and cinders, if the jury believed, from the communicated by any other engine, but the evidence, that the servants of the defendant

in charge of the engine carelessly and negli. quence of the setting fire to the Rendleman gently managed it so as to cause sparks and building, and such that it might have been fire to escape and set fire to the Rendleman foreseen by any reasonable person. The obbuilding and thereby destroyed plaintiff's jection is not well founded. property. Counsel say that the only evidence The judgment of the Appellate Court is of improper handling was that the wheels affirmed. slipped in starting, and that defendant's Judgment affirmed. witnesses testified that such slipping was liable to happen to any engineer and was not

(222 Ill. 441) evidence of improper management. Under the evidence the question was a fair one for

CITY OF JOLIET v. SPRING CREEK

DRAINAGE DIST. the jury, and it was not improper to give the instruction, although defendant's witness

(Supreme Court of Illinois. Oct. 23, 1906.) es testified as stated. The fourth advised

1. DRAINS-ESTABLISHMENT_STATUTES.

Under Drainage Act May 29, 1879, $$ 5, 9, the jury that, even if the engine was careful

16, 17, 19 (Hurd's Rev. St. 1905, c. 42), auly and properly managed, yet the defendant thorizing all parties through whose land prowould be liable if the evidence proved that

posed drainage work may be constructed or it was not equipped with the best and most

whose land may be benefited or damaged there

by to appear, and providing for the determinaapproved appliance for arresting sparks and tion by commissioners of the injury to such land fire, and for that reason sparks and fire were and for the assessment of damages and benefits thrown upon the Rendleman building and

by a jury, etc., the proceedings for the estab

lishment of a drainage district which only procaused the destruction of plaintiff's prop vide for the assessment of benefits, without proerty. The principal objection seems to be viding for the ascertainment of the damages for that the instruction stated the duty of the

the land to be taken or damaged, are insuffi

cient. defendant too strictly in requiring it to

2. SAME-ASSESSMENT OF BENEFITS-PROPERhave the best and most approved appliance, TY TAKEN FOR DRAIN. while it was only required to exercise a very Lots actually taken for the construction of high degree of skill in that regard. Every

a drain, in accordance with Drainage Act May instruction on that question given at the re

29, 1879 (Hurd's Rev. St. 1905, c. 42), cannot

be assessed for benefits. quest of defendant was based on the hypothe

3. SAME-TAKING PROPERTY FOR DITCHES— sis that the engine was equipped with the PROCEEDING. best and most approved spark arrester, and A drainage district organized under Drainthat the highest degree of care was exercised

age Act May 29, 1879 (Hurd's Rev. St. 1905,

c. 42), may proceed in accordance with the emito keep the same in good order. The defend

nent domain act to condemn property for right ant was not required by the law to purchase of way and assess damages, and commissioners or adopt every new invention to prevent the

in the proceedings to establish a drainage dis

trict cannot assess benefits against the lands, escape of fire which might be in the nature

a part of which must be taken, until after the of an experiment, but it was bound to exer damages are assessed by a jury in condemnation cise the highest degree of diligence in equipo proceedings. ping its engines with the best and most ap 4. SAME-ASSESSMENT OF BENEFITS. proved appliance which had been proved by

Where the jury, in proceedings under the

eminent domain act to condemn a right of way actual test. There was no question in this

for the ditches for a drainage district, and to case of any new or untried invention which assess the compensation for the land taken was claimed to surpass the spark arrester in

and damaged, determine that land not taken is use. There was no evidence which would

not damaged, the drainage district commission

ers may determine whether it is benefited, and render the instructions subject to criticism, assess the benefits. and the instructions for both parties stated 5. SAME-INCLUSION OF CITY. substantially the same rule. The instruc Drainage Act May 29, 1879, considered

in view of sections 2, 4 (Hurd's Rev. St. 1905, tions were not argumentative.

c. 42), and subsequent sections, authorizing a The purpose of the fifth instruction was to

majority of the owners, representing a third inform the jury that the fact of fire being in area, within a district proposed to be orcommunicated to the Rendleman building by

gunized for a drainage district, to file a peti

tion for the organization thereof, providing for defendant's engine might be established by

giving notice of the petition, etc., authorizes proof of circumstances giving rise to an in the organization of a drainage district including ference of that fact, provided such circum

a part of a city organized under the city and

village act of 1872 (Hurd's Rev. St. 1905, c. 24). stances constituted a preponderance of the

possessing authority over the subject of drainevidence. The objection made to it is that it age within its territory, where the city has not was argumentative, but we do not so regard organized the territory included in the drainage it.

district under any act for drainage purposes,

and has not improved the water course therein. The sixth instruction is said to have been

[Ed. Note.-For cases in point, see vol. 17, objectionable as an abstract proposition. It Cent. Dig. Drains, $ 8.] began with a correct definition of proximate

6. SAME-ASSESSMENT OF BENEFITS AGAINST cause, and so far was necessarily abstract CITY STREETS. in form; but it applied the definition to the Drainage Act May 29, 1879, $ 55 (Hurd's facts in this case to enable the jury to de

Rev. St. 1905, c. 42), authorizing the assessment

of benefits for drains against "any public or termine whether the burning of plaintiff's corporate road or railroad,” and apportioning building and goods was the natural conse to “the county, state or free turnpike road, to

the township, if a township road, to the company, if a corporate road or railroad, such portions of the cost" thereof as to individuals, and providing that, in case such assessment is made in any “township," the commissioners of highways shall cause the same to be levied in the manner provided by Act June 23, 1883, $8 13, 14, 15, 16 (Hurd's Rey. St. 1905, c. 121), does not confer on a drainage district the power to assess benefits to public streets without the consent of the city.

Appeal from Circuit Court, Will County; Dwight C. Haven, Judge.

Proceedings for the establishment of a drainage district. The city of Joliet filed objections to the confirmation of the report of commissioners. From a judgment of confirmation, the city appeals. Reversed and remanded.

This is a statutory proceeding, begun by the filing of a petition on January 17, 1903, in the county court of Will county for the purpose of forming a drainage district, to be known as the "Spring Creek Drainage District," under "An act to provide for the construction, reparation and protection of drains, ditches and levees across the lands of others for agricultural, sanitary and mining purposes, and to provide for the organization of drainage districts," approved and in force May 29, 1879, and the amendments thereto; said district to be formed out of lands lying wholly in Will county, and partly in the city of Joliet. The prayer of the petition is as follows: “Wherefore your petitioners pray that a drainage district to be known as the 'Spring Creek Drainage District may be established according to law under the provisions of the act of the General Assembly of the state of Illinois, approved and in force May 29, 1879, and the several amendments and additions made thereto, and now in force.” On March 20, 1903, the court entered an order, finding that the petition was signed by a majority of owners of property in the district of lawful age, and representing at least one-third in area of the lands proposed to be affected, that said lands are subject to overflow and require drainage for agricultural and sanitary purposes, that the formation of a drainage district is necessary, and that said system of drainage will be useful to the lands and property mentioned in the petition. And it was ordered and decreed hy the court that a drainage district he formed from the territory described in the petition, setting forth the limits of the district, which begins at a point in the center of Iowa avenue in the city of Joliet, and contains 440 acres, more or less, all in the town of Joliet in Will county; that the name of the district be the "Spring Creek Drainage District," and that three persons, named Monroe, Youker, and Ahlvin, be appointed commissioners for said district, and proceed to qualify as such, and take the steps required by law to carry into effect the prayer of the petition. The commissioners made a report, dated September 17, 1903, setting

forth that they had examined the lands described in the petition, and other lands therein mentioned, and that the proposed work was necessary; that they had determined on following the route of Spring creek in said district with a few changes and additions thereto, as shown on the maps, plans, etc., attached to their report; that for the main ditch, branch ditches, open, tiled, and covered, reference was had to the report of the engineer for said district, attached to the report of said commissioners; that the proposed work is to deepen, widen, and wall said main ditches and branches where the same are open and wherever the same is necessary, and to use tile and cover same for other branches; that they employed a surveyor, named Zarley, to make a survey, map, plan, profile, and specifications of the work. showing the starting point, route, and terminus of the proposed work, and the location, size, and dimensions of said ditch, ditches, or drains, etc.; that the probable cost of the work is the sum of $165,000.00; that the probable annual cost of keeping the ditch, ditches, or branches in repair, after the proposed work is completed, is the sum of $150; that none of the lands described in the petition, or set forth as benefited and not named in the petition, will be injured by the proposed work, and that $16,000 will be required to pay the damages to lands caused by the construction of the proposed work; that all of the lands described in the petition will be benefited by the construction of said work, and that the aggregate amount of benefits will exceed the cost of the construction; that they found the ditches, drains, channels, or work should be as set forth by the surveys, maps, plans, profiles, specifications, and petitions filed in the cause. And they ask that their report be approved and confirmed, and that the named draina ge district be declared organized into a drainage district known as the “Spring Creek Drainage District," and that the court enter an order directing the commissioners to make an assessment against the lands within said district for the purpose of raising the amount found necessary therein to construct said system of drainage, including the incidental costs and expenses, etc. At the February term, 1904, of said court, an order was entered that the commissioners should take the required oath, and in lieu of the jury proceed to make an assessment of benefits against the lands within the boundaries of the district, and separately assess all benefits against each tract, lot, or parcel of ground within said drainage district in the proportion in which such tract or tracts of land would be benefited, and that the commissioners proceed in all respects pursuant to the statute, etc.

On March 22, 1904, the commissioners filed the original assessment roll of benefits, show. ing the property specially benefited, giving a

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