(149 N.E.) maintained along the right of way, appellant regularly operated its trains at the speed permitted by the ordinance after a compliance with it. Under the holding of this court in Carlin v. Chicago & W. I. R. Co., supra, and Livak v. Chicago & Erie Railroad Co., 299 Ill. 218, 132 N. E. 524, appellant was clearly bound by the provisions of the fencing ordinance, and its contention to the contrary is without merit. sidewalk across the park at the rear of the and freight trains shall not be operated at natatorium. On the right of way, a short a speed in excess of 10 and 6 miles an hour, distance north of the west end of this side- respectively, over tracks at grade in the city walk, is a rubbish pile. Both 103d street of Chicago, until the company has fenced its and 104th street are closely built up for sev- right of way in compliance with the ordieral blocks east and west of the right of way, nance. After proper fences have been built but there is open farming country both north and proper protection provided at the street and south of this residence section. On the crossings, the company is authorized to opday of the accident appellee swam in the pool erate its passenger and freight trains at a during the early part of the afternoon and maximum speed of 30 and 12 miles an hour, then went to Fernwood Subdivision Park, respectively. After this territory was anwhere he watched some boys play baseball un-nexed to the city, and while the fence was til about 4 o'clock, when he went to 103d street, crossed the railroad tracks, and turned south down the right of way toward the natatorium. When he reached the rubbish pile, he stopped there and searched for rubber bands for a while. He then crossed the right of way line into the park, picked up some newspapers lying in the shrubbery, and looked at the comic strips. As he finished looking at the pictures, a long freight train passed slowly on the west track. He crossed the two intervening tracks, and in an attempt to climb up the side of the train he fell under it. His right foot and ankle were so crushed that it was necessary to amputate his leg about 5 inches below the knee. At the time of the accident two or three other boys were attempting to climb onto the moving train; the trainmen ordering them to keep off. On this day other people were walking along the tracks on the right of way, as they did on most other days. The negligence charged in the declaration is the failure of appellant to comply with the fencing ordinance. This ordinance is set out verbatim in Curran v. Chicago & W. I. R. Co., 289 Ill. 111, 124 N. E. 330, and in substance in Carlin v. Same, 297 Ill. 184, 130 N. E. 371. Under this ordinance the obligation of the company to fence its tracks is absolute, and it is the duty of the city authorities to enforce the ordinance. At the point of the accident there was a substantial fence along the right of way, when the territory was annexed to the city and brought under the ordinance. There being a fence there, it was unnecessary for the city authorities to prescribe the time within which a fence should be built, or to determine the material, design, or height of the fence to be constructed. Under the ordinance the mayor and the commissioner of public works had the right to give specific directions regarding the erection of the fences required, but they were not required to act in the first instance, or at all, if they were satisfied with the fence built by the railroad company. [1] It is evident that, if the city authorities had made any effort to enforce this ordinance, or the railroad company had made any pretense of complying with it, there would have been a substantial fence along the side of this park, where children were invited to congregate in great numbers every day. The ordinance provides that passenger [2] One of the principal contentions of appellant is that there is no evidence in the record tending to show that the absence of a fence along the right of way at the place in question contributed to or proximately caused the injury to appellee, but that the evidence shows that the proximate cause of the injury was appellee's own act in climbing onto the moving train. Appellee being under 10 years of age, the statute making it a misdemeanor to climb upon a railroad car without permission has no application to him. Notwithstanding this statute is general in its terms, it must be construed in connection with the statute declaring a child under the age of 10 years doli incapax. McDonald v. City of Spring Valley, 285 Ill. 52, 120 N. E. 476, 2 A. L. R. 1359. [3] The fact that this statute is not applicable to appellee does not, however, dispose of the contention of appellant, because appellee was a trespasser when he attached himself to the side of the moving train. On the other hand, appellant is not in a very good position to complain of the trespass of appellee, for the reason that it permitted its right of way at this point to be used promiscuously by the children going to and from the swimming pool, and by other persons passing between 103d street and 104th street. If there had been a fence separating the right of way and the public park east thereof, it would have been inconvenient, to say the least, for children to use the right of way as a thoroughfare in order to reach the natatorium. There was a sidewalk leading from the point where appellee left the right of way at the 103d street crossing around the park to the swimming pool, and if a substantial fence had separated the right of way from the park, as the ordinance required, it is unreasonable to assume that this child would have gone down the right of way, and climbed over the fence, rather than use the sidewalk. Certainly, it cannot be ruled, as a matter of law, that the absence of a fence | Richardson v. Nelson, 221 Ill. 254, 77 N. E. did not contribute to the accident, and the 583; Chicago, St. Louis & Pittsburg R. Co. v. question was therefore one proper to be sub- Welsh, 118 Ill. 572, 9 N. E. 197. And the same mitted to the jury. Hayes v. Michigan rule is followed by other courts. McEldon v. Central Railroad Co., 111 U. S. 228, 4 S. Ct. Drew, 138 Iowa, 390, 116 N. W. 147, 128 Am. 369, 28 L. Ed. 410; Ulicke v. Chicago & St. Rep. 203. We have also held that, when Northwestern Railway Co., 152 Wis. 236, 139 a child has attained the age of 14 years N. W. 189; Mattes v. Great Northern Rail- there is no reason to excuse him from the way Co., 100 Minn. 34, 110 N. W. 98. same degree of care for his own safety which is required of an adult. Austin v. Public Service Co., 299 Ill. 112, 132 N. E. 458, 17 A. L. R. 795; Walldren Express Co. v. Krug, 291 Ill. 472, 126 N. E. 97; Chicago & Alton Railroad Co. v. Becker, 76 Ill. 25. These rules established by the courts are derived from the common-law rule, which applies in criminal cases. Since, in reason, responsibility for one's acts depends upon the understanding rather than the age, there can be no fixed rule of age which will operate justly in every case; but, as is said by Bishop concerning the rule as applied to criminal conduct, "an imperfect rule is practically better than none." [4, 5] To leave the right of way unfenced along this public playground under the circumstances in evidence was a constant invitation to the crowds of children frequenting the playground and using its facilities for recreation and amusement to use the right of way as a public thoroughfare, at the risk of being run down by constantly passing trains. A fence upon the line between them might have served at least as notice and signal of danger, if not as an obstacle and prevention. To young children, for whose health | and recreation the park is intended, and who are in many cases as irresponsible as dumb animals, a fence is an impediment against straying which might prove of value and importance. In order to make a negligent act the proximate cause of an injury, it is not necessary that the particular injury and the particular manner of its occurrence could reasonably have been foreseen. If the consequences follow in unbroken sequence from the wrong to the injury, without an intervening efficient cause, it is sufficient if at the time of the negligence the wrongdoer might, by the exercise of ordinary care, have foreseen that some injury might result from his negligence. Illinois Central Railroad Co. v. Siler, 229 Ill. 390, 82 N. E. 362, 15 L. R. A. (N. S.) 819, 11 Ann. Cas. 368. That the intervening cause which will serve to relieve the original negligence of its actionable quality must be a responsible cause is well established. Iamurri v. Saginaw City Gas Co., 148 Mich. 27, 111 N. W. 884; Fishburn v. Burlington & Northwestern Railway Co., 127 Iowa, 483, 103 N. W. 481. The court properly submitted to the jury the question whether the absence of a fence, in violation of the ordinance, was the proximate cause of the injury (Heiting v. Chicago, R. I. & P. R. Co., 252 Ill. 466, 96 N. E. 842, Ann. Cas. 1912D, 451), and the question whether the attempt of the child to climb onto the moving train was an efficient intervening cause (Lerette v. Director General, 306 Ill. 348, 137 N. E. 811). [6-8] Therefore, while there has been some slight deviation in a few cases in the application of the rule by this court, it is fairly well established by this court and courts of other jurisdictions that a child under 7 years of age is conclusively presumed incapable of contributory negligence, and that in the case of a child above the age of 14 years the same rule shall be applied to him in that regard as is applied to adults; his intelligence and experience being considered. The law is clearly established by great weight of authority that between the ages of 7 and 14 the question of culpability of the child is an open question of fact, and must be left to the jury to determine, taking into consideration the age, capacity, intelligence, and experience of the child. Chicago & Alton Railroad Co. v. Becker, supra; Lake Erie & Western Railroad Co. v. Klinkrath, 227 П. 439, 81 N. E. 377; City of Pekin v. McMahon, 154 Ill. 141, 39 N. E. 484, 27 L. R. A. 206, 45 Am. St. Rep. 114; Rockford, Rock Island & St. Louis Railroad Co. v. Delaney, 82 Ill. 198, 25 Am. Rep. 308; McEldon v. Drew, supra ; Lake Erie & Western Railroad Co. v. Mackey, 53 Ohio St. 370, 41 N. E. 980, 29 L. R. A. 757, 53 Am. St. Rep. 641; City of Shawnee v. Cheek, 41 Okl. 227, 137 P. 724, 51 L. R. A. (N. S.) 672, Ann. Cas. 1915C, 290; Hepfel v. St. Paul, Minneapolis & Manitoba Railway Co., 49 Minn. 263, 51 N. W. 1049. The Appellant's third point is that there is question whether appellee was, under the no evidence in the record tending to show circumstances, in the exercise of ordinary that appellee was in the exercise of ordinary care for his own safety, at and immediately care for his own safety at and immediately prior to the time of the happening of the prior to the time of the happening of the ac- accident in question, was properly submitted cident in question, and that his injury is to the jury. Union Pacific Railway Co. v. due wholly to his own negligence. This court McDonald, 152 U. S. 262, 14 S. Ct. 619, 38 has definitely decided that a child under the L. Ed. 434; Rasmussen v. Whipple, 211 age of 7 years is incapable of such conduct Mass. 546, 98 N. E. 592; Lorence v. City of as will constitute contributory negligence. Ellensburgh, 13 Wash. 341, 43 P. 20, 52 Am (149 N.E.) ly discovered evidence held properly refused for lack of diligence. What we have said in consideration of | 7. Criminal law ~~939 (2)—New trial for newother questions disposes of the contention of appellant that the court erred in refusing to give to the jury an instruction which barred appellee's right to recover if the jury found that he went upon the right of way "of his own initiative and accord, and not because of the fact that there was no fence along the right of way." on 2. Criminal law 1159 (3)-Conviction Reviewing court will not reverse conviction on conflicting testimony, unless there is reasonable doubt of guilt, and it is clear that jury made mistake, or that verdict was result of passion and prejudice. 3. Criminal law 730 (1)-State's attorney's improper remarks held not reversible error, where objections were sustained and jury instructed to disregard them. Improper remarks of state's attorney in argument held not ground for reversal, where court sustained objections to and explicitly instructed jury to disregard them, and again so informed jury and defendant's counsel, when latter referred to them in his argument. 4. Criminal law 938(1)-Applications for new trial for newly discovered testimony not favored. Applications for new trials on ground of newly discovered testimony are not regarded with much favor, and will be closely scrutinized. 5. Criminal law 941(1)-Newly discovered testimony must be conclusive, not merely cumulative, to justify new trial. To justify new trial, newly discovered testimony must be conclusive, and not merely cumulative. 6. Criminal law 938 (2)-Newly discovered evidence must have been undiscoverable by due diligence before trial to justify new trial. Newly discovered evidence must have been discovered since trial, and be such as could not have been discovered before by exercise of due diligence, to justify new trial. New trial for newly discovered testimony held properly refused for lack of due diligence, where defendant made no effort to secure witness' attendance or have trial postponed until he could locate him and secure his presence. 8. Criminal law ~945 (2)-New trial held not warranted by newly discovered testimony of defendant's confederate in commission larceny. of Newly discovered testimony of affiant, to whom prosecuting witness assigned his interest in lot to facilitate sale thereof on advice of defendant, who was convicted of larceny of proceeds, held not to warrant new trial, not being conclusive in view of circumstances of transaction and affiant's connec tion therewith as confederate. Error to Criminal Court, Cook County; William J. Lindsay, Judge. George Mindeman was convicted of larceny and brings error. Affirmed. Loewenstein & Rabinoff, of Chicago, for plaintiff in error. Oscar E. Carlstrom, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, and James B. Searcy, of Springfield (Edward E. Wilson and Clarence E. Nelson, both of Chicago, of counsel), for the People. FARMER, J. George Mindeman has sued out this writ of error to review a judgment of the criminal court of Cook county sen tencing him to the penitentiary for the crime of larceny. The abstract contains a brief statement that the indictment charged defendant with larceny as bailee in one count, with embezzlement in another and larceny in another. The jury found him guilty of larceny in manner and form as charged in the indictment. Defendant contends the judgment should be reversed because, first, it is not sustained by the evidence; second, the court erred in the admission and exclusion of evidence; third, the jury were influenced by improper remarks of the state's attorney, which prevented defendant receiving a fair trial; fourth, the court erred in not granting a new trial on the ground of newly discovered evidence. The abstract is imperfect, and the briefs on neither side are as helpful as they should be. We have been compelled to refer to the record for some testimony. The money that defendant was charged with embezzling and stealing was the money of Adolph Hammer, a sculptor, who came to this country from Germany and has resided in Chicago since the summer of 1913. Soon after he came to Chicago he made the acquaintance of George Mindeman, the defendant, and their acquaintanceship con For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tinued throughout until the arrest of defendant. In 1921 Hammer contracted with Hield & Co., a real estate firm, for the purchase of a lot for $1,650. He paid $120 cash at the time the contract was made and agreed to pay monthly installments of $10 until the lot was paid for. Hammer made the monthly payments until June, 1923, when he had paid on the lot something over $1,100. About that time he concluded to sell his interest in the lot. It is apparent from the testimony that Hammer had no business ability, and he consulted defendant about the sale and told him he did not know how to go about it. A few days later, Hammer testified, defendant told him there was a claim against the lot for about $400. This was not true, but Hammer gave defendant a check for $350, which, together with $50 defendant owed Hammer, was sufficient to release the supposed incumbrance, and defendant undertook, according to Hammer's testimony, to clear the lot of the incumbrance so that it could be sold. Defendant cashed the $350 check, and, Hammer testified, kept the money. Defendant testified he gave Hammer the money received on the check, and was corroborated in this by a witness by the name of Miller, who was a carpenter living in Wisconsin but claimed he was with the parties at the time the check was cashed and the money turned over to Hammer. Later, according to Hammer's testimony, defendant reported to him he was negotiating for the sale of the lot with the Schaeffer Housing Association, real estate brokers, and to facilitate the sale advised Hammer to assign his contract, and suggested the assignment be made to D. W. Smith, who was a friend of defendant and also an acquaintance of Hammer. This assignment was made in the office of Hield & Co. on July 12, 1923, and it seems at about the same time Hammer and wife executed a quitclaim deed either to the defendant or to Smith. The evidence does not make clear which one was the grantee in the quitclaim deed. Schaeffer investigated the title to the lot down to the date of the transaction and told defendant he was ready to close the deal. Defendant told Schaeffer that Hammer had hurriedly left this country for Germany but had assigned his contract and interest in the lot to Smith. Schaeffer said it made no difference to him whom he dealt with, provided he got a good title to the property. Hammer had not left for Germany, and was in Chicago, where he continued to remain. Defendant, Smith, and Schaeffer went to the office of Hield & Co. and closed the transaction. Smith transferred the lot to Schaeffer's client, who paid by several checks the purchase price of $1,650. Hield & Co. deducted what was due them on the lot and gave Smith their the owner of the contract for the lot. Hammer was not present, and, it seems, never saw Smith or defendant till several months afterwards. He never received any of the money. Defendant appears to have left Chicago immediately after the transaction was closed and wrote Hammer postal cards from different places in Colorado and Missouri. The substance of the cards was that defendant would be back soon and would straighten all matters out. In one of the cards he said when he last saw Schaeffer he was mad and would not do anything; that when he came back he would see what he could do; that Schaeffer had no right to block the title; and that Miller would help Hammer until defendant returned. The plain purpose of the cards was to lead Hammer to believe defendant would return, close the sale of the lot, and settle up with Hammer. He did not see Hammer until in January, 1924, after he was arrested under the charge for which he was indicted. Hammer had an office in the basement of one of the Chicago University buildings. John Becker, who was employed by the university in Hammer's factory, testified that in January, 1924, he was in Hammer's office when Miller and defendant came to the office. Defendant appeared to be excited, told Hammer he owed him money and would have paid it, but Hammer had him arrested and he would fight him in the highest courts. Schaeffer testified to the closing of the deal for the lot, which he purchased for a client, in the office of Hield & Co., and the giving by Hield & Co. of a check to Smith for $701.82 drawn on the Greenebaum & Sons Bank. The check was introduced in evidence. It bears the indorsement of Smith, with the memorandum underneath the indorsement, "To be placed to the credit of Irwin Mindeman," who is a son of defendant. The check was indorsed by Smith to a national bank in Colorado. Defendant was present, with Smith, when the transaction was concluded, but Hammer was not present. Defendant testified in his own behalf that Hammer told him about his purchase of the lot and that he had made some paper giving a real estate man the exclusive right to sell it, and had also given Schaeffer the exclusive right, but Hammer said a man named Turner was trying to collect from a man in Cicero, and asked witness to settle the matter with Turner; that witness had nothing to do with transferring Hammer's interest in the lot to Smith; that witness was present at the time the property was transferred by Smith in Hield & Co.'s office; that witness had received no document from Hammer transferring the title to the lot to anybody, and never received any money from its sale; that he did not act as agent for Hammer in the transaction and had no understanding with (149 N.E.) further testified Hammer gave him a check | his interest in the lot. Aside from the $350 for $350 to cash for Hammer; that in company with Hammer and Miller he cashed the, check and gave the money to Hammer; that Hammer said he was in trouble with a woWitness testified he was present at the preliminary hearing and heard Hammer testify; that on that occasion Hammer testified he received the cash on the $350 check from witness. He testified Irwin Mindeman is his son and lives in Colorado. man. John E. Miller, a witness for defendant, testified he lived at Wawatosa, Wis., is a carpenter, and had known defendant about 35 years. He also knew Hammer and Smith. He testified he was with defendant and Hammer when the $350 check was cashed by defendant, and that defendant gave the money to Hammer; that Hammer said he was in trouble with some woman and wanted to settle up but did not know how to do so; that witness was at the preliminary hearing, and Hammer there testified he received the money on the $350 check. Andrew Mitchell testified for defendant that he is an attorney; that he was present at the preliminary hearing; and that Hammer testified there that he received the money on the $350 check. Mitchell also testified he knew friends and associates of defendant and had conversed with them about defendant's reputation for honesty and integrity; that in the community in which defendant resided witness knew his general reputation for honesty and integrity, and that it was good. In rebuttal Hammer testified he was not present with defendant when he cashed the $350 check; that he never had any trouble with a woman, and the check for $350 was given defendant to be used by him in connection with the lot; that he never told defendant he had any trouble with a woman, and never received the money for the $350 check. James J. Fitzpatrick, on behalf of the people, testified he was, and had been, a police officer for 24 years; that he knew the general reputation of defendant in the community in which he resided in Chicago prior to the indictment; that his general reputation for honesty and sobriety was bad. [1, 2] The decision of this case depends upon the credit to be given to the testimony of the witnesses. Hammer was a sculptor, raised in a foreign country, and unacquainted with the business of selling and transferring real estate. He applied to defendant to assist him. Hammer was a fit victim for a man who wanted to deceive him and profit by the deception. There was no incumbrance against the lot except possibly a few dollars for advertising, which was unpaid. The jury believed Hammer's story and disbelieved defendant's story. There is no question about the truth of Hammer's statement that he was beaten out of the money from the sale of check he gave defendant, Hammer was entitled to $700 for his interest in the lot after all claims had been paid. The check for that amount was given to Smith, to whom, at the suggestion of defendant that it would facilitate the sale, Hammer had transferred his interest in the lot. The check was indorsed by Smith, was cashed, and the money placed to the credit of a son of defendant. Smith did not testify on the trial, and no explanation was made by defendant why Hammer never received the money. The conclusion is abundantly warranted that Smith and defendant were confederating for the purpose of swindling Hammer and securing the money for themselves. What defendant said, after he was arrested, to Hammer shows he admitted he had Hammer's money but was angered because he had been arrested, and declared he would fight it out in court. It is not surprising the jury believed Hammer and his witnesses and disbelieved defendant and his witnesses. In fact, it would be surprising if they had not done so. The testimony for defendant was in conflict with that for the people, and, as we have repeatedly held, it was the function of the jury to determine the truth of the controversy. People v. Stephens, 297 Ill. 91, 130 N. E. 459. In such a case a reviewing court will not reverse unless there is a reasonable doubt of defendant's guilt. The court will not substitute its judgment for that of the jury unless it seems clear the jury have made a mistake or that the verdict was the result of passion and prejudice. People v. True, 314 Ill. 89, 145 N. E. 198. [3] The judgment cannot be reversed on the ground that it is not supported by the evidence. It is probably true some of the remarks of the state's attorney during his argument were improper, but they were not of a character which would probably influence the jury. Besides, the court sustained objections of defendant's counsel to the remarks, and explicitly instructed the jury to disregard them, and later during the argument of defendant's counsel, when he referred to the objectionable remarks of the state's attorney, the court again told counsel and the jury he had sustained defendant's objections and the remarks of the state's attorney were not to be considered but were to be disregarded. That assignment of error is not sufficient to justify a reversal. People v. Curran, 286 Ill. 302, 121 N. E. 637; People v. Strauch, 240 Ill. 60, SS N. E. 155, 130 Am. St. Rep. 255. No prejudicial error was committed, as alleged by defendant, in admitting or excluding testimony, and that assignment of error does not require further discussion. One of the grounds of the motion for a new trial was newly discovered testimony, and defendant contends the court erred in ruling that the affidavit as to newly discov |