that can be justly said as to either the second or third of plaintiff's instructions is that, standing alone, they might have been calculated to mislead the jury to the prejudice of defendant; but, in the light of others given, we are clearly of the opinion that such could not have been the case.

We see no substantial ground for the objection made to the seventh instruction given on behalf of appellee, which relates only to the measure of damages. It is in substantial conformity with the decision of this court in the case of Chicago & Eastern Illinois Railroad Co. v. Kneirim, 152 Ill. 458, 39 N. E. 324, 43 Am. St. Rep. 259.

The complaint made of the refusal of the seventh instruction asked by the city is without substantial merit. It laid down correct principles of law, but they were fully announced by those given on behalf of the city.

The objection to the fifth instruction given on behalf of the plaintiff remains to be considered. That instruction is as follows: "The court instructs the jury that the defendant corporation is bound, by law, to use reasonable care and caution to supervise and keep its streets and sidewalks in a reasonably safe condition for travel by night as well as by day, and, if it fails to do so, it is liable for any injuries sustained in consequence of such failure, provided the party injured is himself exercising due care and caution; and the fact that the plaintiff may in some way have contributed to the injury sustained by him will not prevent his recovery, if by ordinary care he could not have avoided the consequence to him of the defendant's negligence." It is, in our opinion, clearly erroneous, in that it excuses the plaintiff from exercising due care, and entitled him to recover even though he may by his own negligence have contributed to his injury. In other words, it is an attempt to qualify the rule which imposes upon the plaintiff in such cases the burden of proving by a preponderance of the evidence that he was at the time of the injury in the exercise of due care for his own safety; that is to say, he did not by his own negligence contribute to the injury of which he complains. He could not make out his case by proving a less degree of care than that which a reasonable person would have exercised under like circumstances.

The doctrine of comparative negligence no longer exists in this state. In West Chicago Street Railroad Co. v. Liderman, 187 Ill. 463, 58 N. E. 367, 52 L. R. A. 655, 79 Am. St. Rep. 226, in speaking of the rule which obtains in some of the states, "that the contributory negligence of the party injured will not defeat the action if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party's negligence," we said: "Such has never been the law in this state. Here the rule is, where a party seeks to recover damages for a loss which has been caused by negligence or misconduct,

he must be able to show that his own negligence or misconduct has not concurred with that of the other party in producing the injury; and the burden of proof is upon the plaintiff to show not only negligence on the part of the defendant, but also that he exercised proper care and circumspection, or, in other words, that he was not guilty of negligence." Although several of the instructions given laid down the correct rule in this regard, they cannot be said to correct the error in the fifth. It positively lays down a rule directly in conflict with the correct one, and, as we have frequently said in such case, it is impossible to say which instruction the jury followed.

For the error in giving the fifth instruction on behalf of the plaintiff, the judgments of the circuit and appellate courts must be reversed, and the cause will be remanded to the circuit court for another trial. Reversed and remanded.

GAGE 7. PEOPLE ex rel. HANBERG, County Treasurer (11 cases).

MCCHESNEY v. SAME.

(Supreme Court of Illinois. Dec. 16, 1903.)

MUNICIPAL CORPORATIONS - SPECIAL ASSESSMENTS-ADVERTISEMENT-DATE OF DELINQUENCY-NAMES OF OWNERS-KNOWLEDGE OF COLLECTOR-EVIDENCE-COSTS ACCRUING AFTER ADVERTISEMENT-JUDGMENTS-FORM. 1. Where the advertisement of delinquent special assessments gave the number of each warrant, and the date when it was certified for collection, which was the date when the assessment was legally due, an objection that the advertisement did not state the years for which the several assessments were due was unsustainable.

2. Where the collector of special assessments had correctly given the name of the owner of the property sought to be charged in the delinquent list, such fact was sufficient evidence that he had knowledge of the owner's name, and was therefore bound to state the same in the advertisement as provided by the statute.

3. The collector of special assessments was not bound to search the records of other offices than his own to find the names of the owners of property subject to special assessments, and, in the absence of evidence that the return of the delinquent special assessment to the county collector contained the owner's name, or that such name was otherwise brought to his knowledge, he was not required to publish such name in the advertised notice of the assessment.

4. Where a special tax assessment collector omitted the name of the owner of property sought to be charged from the published notice of the assessment, such owner was entitled to introduce in evidence the delinquent list of the previous year on the same warrant for the collection of the same assessment, giving his name as the owner of the lots, to show that the collector had notice that he was the owner.

5. The fees and costs allowed by law subsequent to the date of the advertisement may be properly added to the total amount due on a special assessment, and included in the judgment against the property on the delinquent list.

6. Where the judgments entered for special assessments did not find anything to be due, and did not fix any amounts by reference to the delinquent list or otherwise, but purported

list also contained the 23 cents for costs. The fees and costs allowed by law subsequent to the date of the advertisement are sufficient to cover this amount, and it is not improper, in rendering judgment, to add the subsequently accruing costs not earned at the time of the advertisement. The court was right in overruling that objection.

In each of the cases the form of the judgment is the same, and does not comply with the plain requirements of the statute. The court is required to examine the delinquent list, and to hear and decide upon written objections offered by any person interested in lands or lots to the entry of judgment against the same, and to pronounce judgment as the right of the case may be. The judgment must be in favor of the people of the state of Illinois against the tract or tracts or lots of land, or part thereof, for the sum annexed to each, or such part as the court finds to be due and payable; being the amount of taxes, special assessments, interest, penalties, and costs due severally thereon. These judgments find nothing to be due, and fix no amounts, by reference to the delinquent list or otherwise, but purport to be judgments "of sale" against the property for the amount of the special assessments, interest, penalties, and costs due thereon. A "judgment of sale" for whatever is due is not a judgment against the property for a definite or specific amount. The statute contemplates a judgment against the property, and an order for the sale of the same to satisfy the judgment, and the entry of a "judgment of sale" is rather an order for the enforcement of a judgment than a judgment itself. The practice in such cases was settled in Gage v. People, 163 Ill. 39, 44 N. E. 819, and McChesney v. People, 171 Ill. 267, 49 N. E. 491, where the judgments were reversed, with directions to the county court to enter proper judgments.

The judgments in cases No. 3,288 (Henry H. Gage v. People) and No. 3,301 (A. B. McChesney v. People) are reversed, and as to them the causes are remanded to the county court of Cook county for further proceedings in accordance with the views herein expressed. The remaining judgments are reversed, and the causes are remanded to said county court, with leave to the county col lector to move for, and a direction to the county court to enter, a correct judgment in each case in accordance with the statute. Reversed and remanded.

McCHESNEY et al. v. CITY OF CHICAGO. (Supreme Court of Illinois. Dec. 16, 1903.) MUNICIPAL CORPORATIONS-STREET IMPROVEMENTS-PUBLIC HEARINGS-CHANGE OF MATERIAL-REMONSTRANCE - VACATION - ORDINANCE-DESCRIPTION OF IMPROVEMENT

SUFFICIENCY.

1. Local Improvement Act, § 8 (Hurd's Rev. St. 1901, p. 378), permitted the substitution of another ordinance for municipal improvement

without a further public hearing, where at the public hearing the proposed improvement was not abandoned, and by such section, as amended, the board of public improvements was allowed to adopt a new resolution changing the scheme proposed, without a second public hearing, when the change did not increase the cost more than 20 per cent. Held, that where, after a public hearing was had on a proposed improvement for grading, curbing, and paving a street with asphalt at an estimated cost of $21,000, the board did not abandon the improvement. but substituted different material and a less expensive mode of making the improvement, a further public hearing was not required.

2. Local Improvement Act, § 8 (Hurd's Rev. St. 1901, p. 378), provides that when a remonstrance to a proposed improvement, signed by a majority of the frontage property owners, is filed with the board of public improvements, the board shall stay proceedings for one year from date, and that such remonstrance shall contain the signatures of the owners, or their legal representatives, of the property described therein; and section 9 declares that, with any ordinance for a public improvement presented by the board to the city council, shall be a recommendation of such improvement signed by at least a majority of the members of the board, and that such recommendation shall be prima facie evidence that all the preliminary requirements of the law have been complied with, and that any variance shall not be fatal, unless the court shall deem the same willful or substantial. Held, that where the board of public improvements stayed the proceedings on an improvement for a year on the filing of a remonstrance, and thereafter passed a resolution reciting that a number of the signatures on the petition were fraudulent, and thereupon set aside the suspension, and submitted an ordinance to the council, with a recommendation of its passage for such improvement, the record of such orders and resolutions, in the absence of proof that the remonstrance was properly signed and complied with the statute, was insufficient to rebut the prima facie case of regularity made by the recommendation of the board to the city council.

3. An ordinance providing for the curbing of a street, and declaring that an earth filling be placed back of the curbstones, even with the top of them, 4 feet wide at the top, with a slope down the outside of 11⁄2 feet horizontal to 1 foot vertical, was not objectionable on the ground that it failed to state the depth of such filling, so that the quantity thereof could be determined.

4. An ordinance providing for the paving of a street, and requiring a layer of limestone screenings to be spread "so as to completely fill all the interstices in the layer of limestone," which was to be three inches thick, was not objectionable for failure to state the thickness of the layer of screenings.

Appeal from Cook County Court; O. N. Carter, Judge.

Application by the city of Chicago against Alfred B. McChesney and others to recover special assessments for paving. From a judgment of the county court overruling defendants' objections and confirming the assessment, defendants appeal. Affirmed.

F. W. Becker, for appellants. William M. Pindell (Charles M. Walker, Corp. Counsel and Edgar Bronson Tolman, of counsel), for appellee.

WILKIN, J. This is an appeal from a judgment of the county court of Cook county

overruling the objections of appellants and confirming a special assessment levied to pay for curbing, grading, and paving SeventyFourth street, in the city of Chicago.

On June 26, 1901, the board of local improvements passed a resolution originating the scheme for curbing the street with sandstone curbing, grading the street, and paving it with blast furnace slag, crushed limestone, and crushed granite. At the public hearing on July 18, 1901, the board passed a resolution abandoning the improvement mentioned in the former resolution, and directing the engineer to prepare an estimate of the cost of an improvement of the street with asphalt and a combined curb and gutter. Estimates having been presented by the engineer showing the cost would be $21,000, the board on February 5, 1902, passed a resolution providing for the latter improvement, and fixed the time and place for the public hearing. On the day fixed, March 6, 1903, after proper notice, the public hearing was had, and, objections being presented, the board amended its resolution and substituted for the combined curb and gutter sandstone curbing, and for asphalt, slag and crushed limestone and granite, and directed the engineer to prepare an estimate of the cost of the improvement as amended, and that the improvement be proceeded with in accordance with the resolution of February 5, 1902, "as hereby amended and modified." The estimated cost of the improvement as last provided for was $12,500. Thereafter, on April 7, 1902, on receiving what appeared to be a protest or remonstrance by a majority of the property holders, the board passed a resolution to the effect that the improvement be stayed one year. Afterward, on the 26th of June, 1902, the board passed a resolution reciting that it appearing to the board that a number of the signatures upon the petition and the affidavit are fraudulent (meaning the protest), the former order staying the proceedings was thereby rescinded, and the secretary was instructed to prepare the ordinance and submit it to the council, together with the recommendation of the board, for its passage. The ordinance was passed by the council, and the following November the petition for the assessment was filed with the county court.

The first objection urged by the appellants is that the board did not take the necessary preliminary steps; that is, that no public hearing was had as to the improvement provided for by the board at its meeting on March 6, 1902, and embraced in the ordinance submitted to and passed by the council. The contention is that the board abandoned not only the first proposed improvement, but also the second one-that is, the asphalt pavement and the combined curb and gutter-and that section 8 of the local improvement act Hurd's Rev. St. 1901, p. 378) permitted the submission of an ordinance without a further public hearing only where, at the public hearing, "the said proposed improvement be not

abandoned." We do not understand that the grading, paving, and curbing the street was abandoned at the public hearing on March 6th, but only that different materials and a less expensive mode of making the improvement were substituted. Said section 8, as amended in 1901, authorizes the board, at a public hearing, to adopt a new resolution changing the scheme proposed, without another public hearing, when the change does not increase the cost more than 20 per cent. Washburn v. City of Chicago, 198 Ill. 506, 64 N. E. 1064. In the case at bar the cost was greatly decreased. We are of the opinion that no further hearing was necessary.

It is again insisted that the rescission by the board, at its meeting on June 26, 1902, of its former order staying the proceedings for one year, was without authority of law, and void. Section 8, as amended in 1901, provides that in cities of 100,000 inhabitants or more, "when a remonstrance petition is filed by the owners of a majority of the frontage on the line of the proposed improvement with the board of local improvements within thirty days after the public hearing thereon, said board shall thereupon stay all proceedings therein for one year from said date." The said section also provides that the remonstrance "shall contain the signatures of the owners or legal representatives, the description of the property owned or represented, the number of feet so owned or represented, and shall be verified by affidavit of one or more property owners fronting on the line of the proposed improvement, setting forth that the party making the affidavit is a property owner, fronting on the proposed improvement, and that the parties who signed the same are the owners or legal representatives of the property described therein." The contention is, first, that the board had exhausted Its power when it acted on the remonstrance (whether such remonstrance was fraudulent or not) and stayed the proceedings for one year, and, secondly, that if it had power to set aside such stay order it could not do so without notice to the property owners; and authorities are cited which are thought to support this view. Undoubtedly, in all such statutory proceedings whereby the owner is deprived of his property without his consent, the statute must be strictly complied with, and we have often so held. But the whole statute, so far as applicable, must be considered. The proceedings before the board can have no force without the passage of the ordinance by the city council, and section 9 of the same statute provides as follows: "With any such ordinance, presented by such board to the city council or board of trustees, shall be presented also a recommendation of such improvement by the said board, signed by at least a majority of the members thereof. The recommendation by said board, shall be prima facie evidence that all the preliminary requirements of the law have been complied with, and if a variance be shown on the pro

ceedings in the court, it shall not affect the validity of the proceedings, unless the court shall deem the same willful or substantial." It is not denied that the General Assembly had the power to make such recommendation accompanying the draft of the ordinance to the council prima facie evidence that the board had complied with all the preliminary requirements of the law. Even if variances in proceedings by the board are shown on the trial in court, they will not, as the statute expressly provides, affect its validity, unless they are deemed by the court to have been willful or substantial.

Not hav

On the trial in the county court the appellants offered no evidence, except the record of the several orders and resolutions adopted by the board, already mentioned. We are of the opinion that such evidence was not sufficient to overcome the prima facie case made by the petitioner. It does not appear that the remonstrance was given in evidence, or any proof whatever made that it complied with the statute. It appeared that proper notice was given of the hearing, but whether notice was given of the proceedings to set aside the order staying the work for one year does not appear. Appellants might have shown, if it had been the fact, that a remonstrance within the provisions of the statute was filed with the board, and that the subsequent action by the board and city council within the year was unauthorized. ing done so, the prima facie case made by the petition was not overcome. If no such remonstrance was filed, or if it was found to be fraudulent, as the board afterwards ascertained, it was not its duty to postpone the proceedings for a year. At all events, it was open to appellants in the county court to prove, if they could, that there was a substantial or willful departure by the board from the course of proceeding prescribed by the statute. To require the petitioner to prove, in the first instance, that the proceedings of the board were in exact compliance with the statute, before the assessment could be confirmed, would entirely abrogate said section 9. Departure from the statute, to affect the validity of the proceedings, must be substantial or willful.

on the configuration of the ground after the grading was done and the curbstone put in, and that the depth of the filling would depend on the varying surface of the ground. We think all the necessary requirements were stated from which the contractor could determine the amount of work to be done, as well as any other person interested. The same objection might with as much, and even more, reason, have been made to the provision for grading the street. The ordinance does not state, nor was it necessary that it should state, how much dirt was to be removed, nor to what depth along the street, but only what the surface of the street, when graded, should be. The grading would include, in many cases, dirt to be removed from one place and deposited in another, and it would not be necessary to state in the ordinance anything more than the grade and the conformation, when completed, of the surface of the street. We see no reason why any stricter rule should be applied to the filling back of the curbing. In Willis v. City of Chicago, supra, the question was as to the depth to which the curbing should be placed. That question could not be determined from the ordinance. Its height was given, but, without anything from which its depth could be ascertained, its size and cost could not be determined so as to enable contractors to make an intelligent bid. As said in that case, "the top is the grade of the street, but the bottom may be one foot or two feet below the grade, for anything shown in the ordinance." That is a very different thing from "filling," which every one would know would have to begin at the bottom of the depression to be filled. Counsel also cites City of Alton v. Middleton's Heirs, 158 Ill. 442, 41 N. E. 926, but, like the Willis Case, it has no application. The ordinance there failed to state at what depth below the surface the sewer was to be placed, hence it was impossible to ascertain what excavation would be necessary.

The objection that the ordinance requires a layer of limestone screenings to be placed on the crushed limestone, and a layer of bank gravel to be placed on the crushed granite, without stating the thickness of these layers of screenings and bank gravel, is not sustained by the record. The abstract does not fairly state the provisions of the ordinance in that regard. The ordinance does provide that the layer of limestone screenings shall be spread "so as to completely fill all the interstices in the layer of limestone"-that is, in the three inches of crushed limestone provided for-and the same requirement was made as to the layer of granite screenings placed on the three inches of bank gravel.

Some other minor objections are made. which we have examined, but find without substantial merit, and they need not be further noticed.

No reversible error appearing, the judgment of the county court will be affirmed. Judg