A certain physician was put upon the stand, as a witness for appellee, to testify in regard to her injuries, and, upon the cross-examination, appellants attempted to discredit the witness by asking him questions in regard to the professional opinions he had given in other suits, brought to recover damages for personal injuries against one or more of the present appellants. It was also sought by the appellants to show by the direct examination of certain witnesses that the physician in question was interested as a medical man in a large number of personal injury suits against corporations. This class of testimony the trial court refused to admit. Cross-examination upon independent cases of the same character, and about the same time as the principal case, is not allowed. (2 Taylor on Evidence, sec. 1435; Spenceley v. DeWillott, 7 East, 108). The rule is more strict against the use of this kind of testimony in direct examination. The acts and declarations either of strangers, or of one of the parties to the action in his dealings with strangers, are irrelevant. They are what are denominated res inter alios acta. (1 Taylor on Evidence, sec. 317). There is nothing in the case of Chicago City Railway Co. v. Carroll, 206 Ill. 318, which is opposed to the view here expressed. In that case it was held to be proper to ask a physician on cross-examination in a personal injury case by whom he was paid, etc. But the testimony, whose introduction is there justified, applies directly to the relation of the witness to the party in interest and to the particular case, and not to his relation with other parties and other cases. It was there said (p. 327): “It is always competent, on cross-examination, to ask a witness if he is in the employ of a party, or if, at the time he rendered the particular service, he was in the employ of such party, for the purpose of showing his relation to the case and his interest in it, as affecting his credibility and weight of his evidence.”

As has already been stated, the appellee and a witness, named Gaffney, testified that, when she approached the Pennsylvania tracks, the east gate was up. This testimony was admitted without objection at the time by the appellants.

At a later stage in the trial, however, the appellants made a motion to exclude the testimony in regard to the east gate being up as being immaterial, and the court refused to grant the motion. It is said that this was error on the part of the trial court. The refusal to exclude the evidence after it was admitted was proper, because appellants introduced testimony themselves for the purpose of contradicting this evidence on the part of the appellee. That is to say, appellants introduced witnesses, whose testimony tends to show that the gates were shut, or down, and that the appellee entered upon the Pennsylvania tracks by passing between the end of the gate, while closed, and the fence post. If the testimony introduced by the appellee had been excluded, such testimony on the part of the appellants would have gone to the jury without any contradiction thereof on the part of the appellee.

But, independently of any of these considerations, the rulings of the trial court in regard to the admission and exclusion of evidence cannot now, and here, be reviewed by this court, for the reason that appellants took no exception to the ruling of the trial court in overruling their motion for new trial. Errors of the trial court in rulings as to the admissibility or exclusion of evidence constitute grounds for a new trial. "It is the duty of litigants to seek this mode of relief in the trial court, and resort to an appeal only in the event the trial judge erroneously refuses to grant a new trial, and such refusal is excepted to, and the exception preserved." (Chicago, Burlington and Quincy Railroad Co. v. Haselwood, supra; Illinois Central Railroad Co. v. Johnson, 191 Ill. 594).

Third-The judgment in the present case was against the two appellant companies here appealing. It is said by counsel for the appellants that there was no proof of ownership of the track, upon which the injury occurred, or of the four tracks west of the tower house, by the Chicago and Western Indiana Railroad Company; that, therefore, no liability was shown on the part of that company; that a judgment against two defendants in tort is a unit, and if there be

no evidence against one, and judgment is entered against both, the judgment must be reversed as to both. It is conceded by the appellants that this rule has no application here, if the ownership of the four western tracks by the Western Indiana Railroad Company is shown by the testimony. It is well settled that, "when injury results from the negligence or unlawful operation of the railroad, whether by the corporation to which the franchise is granted, or by another corporation, or by individuals whom the owner authorizes or permits to use its tracks, the company owning the railway and franchise will be liable." (Pennsylvania Co. v. Ellett, 132 Ill. 654; Chicago and Erie Railroad Co. v. Meech, 163 id. 305; West Chicago Street Railroad Co. v. Horne, 197 id. 250). In West Chicago Street Railroad Co. v. Horne, supra, it was held that when an injury results from the negligent operation of a railway, whether by the corporation to which the franchise is granted or its lessee, both the lessor and the lessee are liable to respond in damages.

All the witnesses introduced by the appellee speak of the tracks west of the tower house as being the tracks of the Chicago and Western Indiana Railroad Company. None of the testimony to the effect that this company owned the tracks was objected to, when introduced. It is said by counsel for the appellants that it was mere hearsay testimony, and that no positive proof was introduced as to the ownership of the tracks by the Chicago and Western Indiana Railroad Company. In a case of this kind reputed ownership is sufficient, and such reputed ownership was clearly shown in this case. Here, the plea of not guilty was filed, and, in an action against a railway company for personal injury where the declaration alleges that the defendant company was in possession of the road and operating it, it will be impliedly conceded by the pleadings, not only that the defendant company was a corporation, but also that, at the time of the alleged injury, it was operating the particular line of railroad mentioned in the declaration, and that the operators in charge of the train

being run on said road were its servants and employes. (McNulta v. Lockridge, 137 Ill. 270).

We do not understand that the doctrine of the case of McNulta v. Lockridge, supra, was overruled by the later case of Chicago City Railway Co. v. Carroll, suprà. In the latter case it was distinctly said: "We are clear, however, that where the matter is not made an issue, and is but inducement to the general charge of negligence averred, slight evidence will be sufficient, uncontradicted, to support the allegation." Here, in this case, the declaration averred that the Chicago and Western Indiana Railroad Company, "owned, controlled and operated a certain right of way," etc. This allegation of ownership was mere inducement to the general charge of negligence, and, therefore, the evidence, which was introduced of ownership, even though it may have been slight, was sufficient to support the allegation of the declaration.

It may be said here as was said in Chicago, Burlington and Quincy Railroad Co. v. Warner, 108 Ill. 538, “no proof is required of facts which everybody is presumed to know." Evidence of common reputation is received in regard to public facts. (I Greenleaf on Evidence, sec. 128). The Chicago and Western Indiana Railroad Company is a public service corporation, and with its tracks, trains, lessees, employes, running time, depots, etc., is like a highway, or a ferry, to the people of the neighborhood where its tracks are located. Any rule of law, which would force an injured person to make formal proof of ownership in cases like the present, would certainly occasion great inconvenience. (Peoria and Pekin Union Railway Co. v. Clayberg, 107 Ill. 644; Chicago, Burlington and Quincy Railroad Co. v. Gregory, 58 id. 272; Carter v. Gunnels, 67 id. 270; Central Stock Exchange v. Board of Trade, 196 id. 396).

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

KATIE CLEMENS, Exrx. et al.

v.

JOHN KAISER.

Opinion filed October 24, 1904.

I. APPEALS AND ERRORS—when the complainant cannot complain that decree is not supported by allegations. Complainant in a bill to declare property to be held in trust for her by the defendant, who answers claiming ownership in fee, cannot complain that the decree finds that the defendant holds the property as security for a debt owing from a third party, since the effect of the decree is that the defendant does not hold the property in trust for complainant.

2. COSTS-decree should not award execution for costs against estate or executrix. A decree for costs against the estate of the deceased complainant, accruing prior to her death, and against the executrix, substituted as complainant, for subsequent costs, should not award execution against the estate or the executrix.

APPEAL from the Circuit Court of Cook county; the Hon. C. M. WALKER, Judge, presiding.

On July 31, 1901, Margaret Lang filed a bill in the circuit court of Cook county against John Kaiser, praying that the legal title to certain premises in the city of Chicago, known as No. 234 Vine street, be decreed as held in trust for her by Kaiser, and that he be ordered to convey such title to her; also for an accounting of certain moneys alleged to be held in trust by him for the complainant, and for an order requiring him to pay to her the amount found to be due her upon such accounting. Kaiser answered, denying the material allegations of the bill, denying any trust relations between him and the complainant, and denying that she was entitled to an accounting from him. A general replication was filed by complainant. The cause was referred to the master to take the evidence and report the same, together with his conclusions, to the court. Before decree, Margaret Lang died, and her executrix, Katie Clemens, and Katie Clemens and Mamie Feid, her sole legatees and devisees, who are appellants here, were substituted as complainants.