for them, that they are not bound by a verbal contract. The written contract would be no repudiation of the prior verbal one, where there was no such intention, and the written contract was induced by false representations that Emmett would not take the land under the verbal contract. The decree will be affirmed.

(119 Ill. 586)

CHICAGO & E. I. R. Co. v. O'CONNOR, Adm'r, etc.

(Supreme Court of Illinois. November 13, 1886.)

1. ACTION OR SUIT-PERSONAL INJURIES-SURVIVAL.

Actions for injuries to the person survive, under the Illinois administration act. 1 Starr & C. c. 3, 123.

2. PLEADING STRIKING OUT AFTER DEMurrer.

Striking allegations out of the record is not a proper method of reaching defects in such allegations; but, where the defect has already been reached by demurrer, the motion to strike out will be supererogatory, and it will be immaterial whether it is allowed or denied.

3. STATUTE OF LIMITATIONS-AMENDMENT-PLEADING.

Where the defendant asks leave to plead the statute of limitations after the issues are settled, it is discretionary with the court whether to permit the same.

4. EVIDENCE-TESTIMONY OF DECEASED WITNESS.

Where a cause is set down for a new trial upon the same issues as were submitted at the former trial, the testimony of a deceased witness at the former trial may be proved at the new trial.

5. NEGLIGENCE-INSTRUCTIONS TO JURY-COMPARATIVE NEGLIGENCE.

In an action for negligence, it is not indispensable that the rule as to comparative negligence be added by the court to the instructions asked by plaintiff. Defendant should ask for such instruction, if he desires it. If given, it must be given correctly. 6. SAME QUESTION OF LAW OR FACT.

It is only when the conclusion of negligence necessarily results from the statement of fact that the court can be called upon to say to the jury that a fact establishes negligence as a matter of law. If the conclusion of negligence under the facts stated may or may not result, as shall depend on other circumstances, the question is one for the jury.1

7. MASTER AND SERVANT-FELLOW-SERVANTS-DIFFERENT RAILROAD COMPANIES.

Where two railroad companies use the same track, and each controls its own trains, the servants of the two companies are not fellow-servants. Appeal from appellate court, First district.

Action brought by Jeremiah O'Connor, a track-repairer, in the employ of Western Indiana Railroad Company, to recover for personal injuries received by being struck by a train of defendant company, which was a lessee of the tracks of the Western Indiana Company, while plaintiff was at work on the track. The plaintiff recovered a verdict, and, while the case was pending on appeal, died. The judgment was reversed upon said appeal, and a new trial ordered, and, upon remand, the administrator of deceased was substituted as plaintiff, on motion of plaintiff's attorneys. Defendant then filed a plea in abatement, alleging the death of plaintiff from other injuries than those sued for. Upon plaintiff's motion this plea was struck from the files. Afterwards plaintiff filed a demurrer to the plea, which was sustained. Defendant then moved to strike out certain parts of the declaration, which motion was denied in part, and sustained only by striking out the words "permanently crippled and disabled" in each paragraph. Defendant then moved for leave to file a demurrer to each count of the declaration, which was denied. Defendant then moved for leave to file a plea of the general issue, and of statute of limitations, which was denied. Defendant excepted to these several rulings,

1 As to when negligence is a question of law, and when of fact, see Pottstown Iron Co. v. Fanning, (Pa.) 6 Atl. Rep. 578; Delaware & H. C. Co. v. Webster, (Pa.) 6 Atl. Rep. 841; Pittsburgh, O. & E. L. Ry. Co. v. Kane, (Pa.) 6 Atl. Rep. 845; Barbo v. Bassett, (Minn.) 29 N. W. Rep. 198, and note; Lane v. Central Iowa R. Co., (Iowa,) 29 N. W. Rep. 419; Burns v. Chicago, M. & St. P. Ry. Co., (Iowa,) 30 N. W. Rep. 25, and note; City of Plattsmouth v. Mitchell, (Neb.) 29 N. W. Rep. 593, and note.

and, upon the trial, to certain instructions given, and certain refusals to give instructions asked. Plaintiff recovered a verdict and judgment, and defendant appealed.

Wm. Armstrong, for appellant.

It was error to strike out and sustain the demurrer to the plea in abatement. In Holton v. Daly, 106 Ill. 131, it is intimated that, in case the party dies from other causes than those mentioned in the declaration, nothing survives. The court should have struck out all the allegations of the declaration as to pain and suffering, etc., on our motion. If anything survives to the administrator, it is for actual pecuniary loss up to the time of death. The right of action to recover for permanent injuries, pain, and suffering, etc., abates by the death of the injured party.

After the changes that occurred in the pleadings, viz., the substitution of the administrator, striking from the files, and sustaining a demurrer to the plea in abatement, and striking out portions of the declaration, we were entitled to demur to the declaration, and also to file a plea of the general issue, although such a plea had been filed to the original declaration before the first trial, and a plea of the statute of limitations, if we so desired. North Chicago R. M. Co. v. Monka, 107 Ill. 340.

The issues in the last trial were not the same as in the first one, and therefore the testimony given by Jeremiah O'Connor on the first trial was not competent. Holton v. Daly, 106 Ill. 131; Wade v. King, 19 Ill. 300; McConnel v. Smith, 23 Ill. 611; S. C. 27 III. 232; 3 Greenl. Ev. § 341.

Plaintiff was guilty of contributory negligence, and not entitled to recover. In this state we understand the rule of law to be settled that where a party approaches a railroad crossing, knowing it to be such, and goes upon the track where his view is unobstructed, and is injured by a passing train, he cannot maintain an action on the ground of negligence in the failure to ring a bell or sound the whistle. Chicago, B. & Q. R. R. v. Lee, 68 Ill. 576.

The second instruction given for plaintiff is erroneous, as it embraces the element of pain and suffering as a ground of recovery. The right to recover for pain and suffering does not survive.

The refusal to instruct the jury that, if deceased was injured solely by reason of his making a mistake as to which track the train was coming on, he could not recover, was error.

Hynes, English & Dunne, for appellee.

The plea in abatement was properly struck from the file, and a demurrer thereto properly sustained. The case of Holton v. Daly, cited by counsel for defendant, not only fails to support the position taken by them, that the suit abated by the death of O'Connor, but, on the contrary, it is positively and unequivocally in our favor. It in effect declares that a suit would not abate if the plaintiff died from other causes than those for which he sued; and further declares that the administrator of the deceased, in a cause where the deceased died from different causes, is placed in exactly the same position of the deceased, and can recover exactly the same compensation as the deceased himself could have recovered upon final judgment.

The testimony of Jeremiah O'Connor, given at the former trial, was properly admitted. The issues were substantially the same as at the first trial. Where the issues are substantially the same, such evidence is admissible. Iglehart v. Jernegan, 16 Ill. 513; Mineral P. R. Co. v. Keep, 22 Ill. 9; 1 Greenl. Ev. (13th Ed.) 199, 200; 1 Whart. Ev. § 177.

The allegations struck out were merely surplusage. Burnap v. Wight, 14 Ill. 301; 1 Chit. Pl. 262; Steph. Pl. 524; Tucker v. Randall, 2 Mass. 283; Grannis v. Clark, 8 Cow. 36; Wilmarth v. Mountford, 8 Serg. & R. 124.

After a general verdict for plaintiff, it is presumed that no damages have been given on faulty allegations of a declaration. Steele v. Western I. L. Nav. Co., 2 Johns. 283; Richards v. Farnham, 13 Pick. 451.

The death of O'Connor having occurred from other causes than the injury sued for, the administrator may recover exactly the same compensation, and upon the same grounds, that he could have recovered if he had lived, which would include damages for pain and suffering. Holton v. Daly, supra.

The instruction asked, referring to O'Connor's actions as a mistake, was properly refused. The court had no right to characterize his conduct in that Moreover, a mistake does not necessarily include negligence. The instruction was given, as far as proper, in other instructions.

It was discretionary with the court to give or refuse leave to file a special plea, and there was no abuse of discretion in refusing leave to plead the statute of limitations, as defendant's object was merely to base thereon a frivolous claim that, by the change in the declaration, a change in the cause of action was made, and the action must be considered as begun at the time of such change.

Defendant had no right to demur or plead the general issue to the declaration, there being a plea of the general issue already on file.

SCHOLFIELD, J. We have carefully considered the several grounds urged for a reversal of the judgment below, and are of the opinion that they are all untenable.

1. The action being for personal injuries caused by the negligence of the defendant, it is within the statute, and survives, (section 123, c. 3, Rev. St. 1874;) and there is nothing in Holton v. Daly, 106 Ill. 131, which holds to the contrary. Indeed, it is expressly therein recognized that such actions do survive upon the death of the plaintiff; and it was held, when the death is the result of the injuries for which the suit is brought, the action must be prosecuted after the death for the benefit of the widow and the next of kin; and that, in such case, there can be no recovery for the bodily pain and suffering, but that, where the death results from a cause other than the injuries for which the suit is brought, there may be a recovery, notwithstanding the death, for precisely the same injuries that the party himself could have recovered for, had he lived until after the final trial. The demurrer to the plea was therefore properly sustained. The motion afterwards made to strike the plea from the files was simply supererogatory. Sustaining it did no possible harm to the defendant.

2. We are not aware of any authority which sanctions the practice of striking out portions of a declaration on motion. If a declaration is defective, a demurrer should be interposed; and, in some instances, the same question may be raised on objection to evidence, or on instructions to the jury. In no view do we think the defendant was prejudiced by the ruling of the circuit court in this respect. The question is not what we may think ought to survive, but what does the statute declare shall survive. Its language is free of ambiguity, very plain, and, it would seem, incapable of being misapprehended. It is: "In addition to the actions which survive by the common law, the following shall also survive: * * * Actions to recover damages for an injury to the person. * * *" This can surely mean nothing else than that the action shall proceed in the name of the administrator, just as if the party had not died. It does not, as does the act of February 1, 1853, give a new right of action to the administrator. It simply continues an existing action. or right of action, and prevents its abating by the death of the plaintiff or party having the right of action.

3. The plea of not guilty was already on file. The action of the court in ordering, on the defendant's motion, that a portion of the declaration be stricken out, did not essentially change the material allegations of the declaration. The issues were, in substance, the same afterwards as before. It is not pretended that, under any evidence that could have been produced, the statute of limitations could have been sustained. If that plea was intended

to be interposed in good faith, it should have been done before the issues were closed. The death of the plaintiff did not, in any respect, affect any issue under that plea. It was discretionary with the court to allow the plea to be filed at the late day that it was offered, and we perceive no abuse of discretion in refusing it.

4. There was evidence before the jury tending (how much, is immaterial) to establish negligence, and the question of the weight of it and of the reasonableness of the amount of damages belong purely to the appellate court. 5. It was entirely competent to prove, as was done, what' O'Connor testified on the former trial. The issues were unchanged in any respect by his death, (Holton v. Daly, supra;) and, that being so, all the authorities concur that it was competent to prove on the last trial what he testified to on the first, (McConnel v. Smith, 27 Ill. 234; Iglehart v. Jernegan, 16 Ill. 513; Mineral P. R. Co. v. Keep, 22 Ill. 9; 1 Greenl. Ev. [13th Ed.] § 164.)

6. It is objected that the first instruction does not state the law of comparative negligence recognized in this state. Notwithstanding any expressions that may be found in opinions in earlier cases tending to authorize a conclusion to the contrary, it is now settled that it is not indispensable that such doctrine shall be stated in instructions for the plaintiff. If an attempt is made to state the doctrine, it should be stated correctly, as held in cases referred to in the plaintiff's argument; but if the jury are correctly instructed, in other respects, in regard to the doctrine of negligence, it will be sufficient. It must appear that the plaintiff has observed due care, and that he was injured by the negligence of the defendant; and, if this does appear, it will authorize a recovery. If the defendant wishes the jury further instructed in regard to the comparative negligence of the parties, the counsel for that side should solicit the instruction. Calumet Iron & Steel Co. v. Martin, 115 Ill. 374; S. C. 3 N. E. Rep. 456.

But it is again objected that this instruction excludes the idea that it should appear that the injury was caused by the negligence of the defendant. This is a misapprehension. In the introductory part of the instruction the jury are told that the plaintiff seeks to recover on the ground that the defendant so negligently, carelessly, and improperly drove and managed its locomotive engine and train on the occasion in question that the deceased, Jeremiah O'Connor, while in the exercise of ordinary care, suffered certain injuries; and, in the body of the instruction, the jury are again told that the right of recovery is dependent upon their finding from the evidence, and under the instruction of the court, that "the defendant is guilty of having so negligently, carelessly, and improperly driven and managed its locomotive engine and train on the occasion in question, that the deceased, Jeremiah O'Connor, while in the exercise of ordinary care, suffered certain injuries thereby, as alleged in the declaration."

7. It is objected that the court erred in refusing to give to the jury the defendant's third and fourth instructions. The third instruction asked by the defendant reads thus: "In this case, if you find from the evidence that the decedent, O'Connor, was injured solely by his making a mistake as to which track the train was coming on, then the plaintiff cannot recover, and you shall find a verdict for the defendant." This implies that if O'Connor made a mistake as to which track the train was coming on, it must, inevitably, have been either because he did not possess the knowledge in relation to the situation of the running of the trains thereon, or because he did not exercise the care or skill in this respect which the duties he had assumed to perform required, to ascertain on which track the train was coming; but it is manifest this is untenable, because the failure of the defendant to ring a bell, or to otherwise give warning of the approach of the train, or the peculiar manner in which the train was operated, may have caused O'Connor to make a mistake as to which track the train was coming on, notwithstanding that he was, at

the time, in the exercise of due care. To mistake-that is, to err in judgment or opinion-does not, necessarily, imply a failure in duty on the part of the person mistaken. He may have judged accurately, or, at least, reasonably, in view of the lights before him. And yet he may have been mistaken-his judgment wrong through no fault of his-because those lights were illusory and deceptive. Whether here, assuming that O'Connor was mistaken in the respect indicated in the instruction, that mistake was because of some failure in duty on his part, or because of some failure in duty on the part of the defendant, was, under the evidence, as preserved in the record, a question of fact for the jury. The court could not declare, as a matter of law, that it was because of a failure in duty on the part of O'Connor. It is only when the conclusion of negligence necessarily results from the statement of fact, that the court can be called upon to say to the jury that a fact establishes negligence as a matter of law. If the conclusion of negligence, under the fact stated, may or may not result, as shall depend on other circumstances, the question is one of fact for the jury. The fourth instruction asked by the defendant is repeated in the defendant's twelfth and thirteenth instructions, which were given, and there was no necessity for further repetition.

8. The sixth instruction was properly refused, because, in the first place, it seeks to put the court in the place of the jury, and require it to draw the conclusions of fact for the jury, instead of leaving them to be drawn by the jury; and, in the second place, the idea intended to be conveyed is fully expressed in the defendant's fourteenth instruction, which was given. What was said by this court, supposed by counsel for the defendant in error to be pertinent in Lake Shore & M. S. R. Co. v. Hart, 87 Ill. 534, was in regard to travelers about to cross over railroad tracks, and is irrelevant to a case like the present where an employe of a railroad company is injured in the performance of duties on or about railroad tracks.

9. The defendant asked to have the jury instructed to the effect that the relation of co-servant existed between O'Connor and his foreman, and that, if O'Connor was injured through the negligence of his foreman to give him warning, this would be the negligence of a fellow-servant, and there could be no recovery. O'Connor and his foreman were in the employ of the Western Indiana Railroad Company. This suit is against the Chicago & Eastern Illinois Railroad Company, charging it with negligence. It is not pretended that O'Connor's foreman had anything to do with the running and management of the defendant's train, and hence the case is not one wherein the doctrine applicable to cases in which one servant is injured by the negligence of a co-servant is pertinent. The questions are, did O'Connor observe due care to avoid the injury? and, if so, was he, while observing such care, injured by the defendant's negligence? O'Connor could not, and it was not claimed that he should, be absolved from his duty to observe due care because he was under the control of a foreman. Of course, if he was injured solely in consequence of the negligence of his foreman, he was not injured in consequence of the negligence of the defendant; but this is only equivalent to saying that, if O'Connor was not injured by defendant's negligence, there could be no recovery. If not thus injured, it was immaterial how otherwise he was injured; and in this respect the jury was sufficiently instructed.

We are of the opinion that there is no error in the ruling of the court upon any question of law presented by the record which would justify us in reversing the judgment below. The judgment is affirmed.