dedication of the streets, so far as his grantees and those claiming under him were concerned. These sales conferred on the purchasers the right to have this street remain open forever; and this was not a mere right | that they should use it, but was a right vested in them that the public should have the right to use it. As to them, it was not important whether the public accepted the dedication or not, since the right acquired was a private right. Zearing v. Raber, 74 Ill. 409; Earll v. City of Chicago, 136 Ill. 277, 26 N. E. 370; Clark v. McCormick, 174 Ill. 164, 51 N. E. 215; Eisendrath & Co. v. City of Chicago, 192 Ill. 320, 61 N. E. 419.

Appellant insists that it could enforce this individual right without an acceptance by it, and that the judgment was wrong for that reason also. The right which the purchasers acquired to have the street kept open as a public street was their private right, and they are not parties to this suit. So far as appellant is concerned, it must have accepted the street so as to impose upon it the burden of keeping it in repair, and to assume liabilities for a failure to do so. Where a municipality, as trustee for the public, and individual lot owners, have common rights and interests in having a street kept open, they may unite as complainants in a bill to prevent the invasion of their rights. Maywood Co. v. Village of Maywood, supra; Marsh v. Village of Fairbury, supra. In this case the public right only is involved, and an acceptance was necessary. We are of the opinion, however, that such an acceptance was proved. Catlin dedicated the premises to the public use, and, fully conceding the public right, was allowed to remain in possession of a portion of the street. The village entered upon the street, and the fact that he was allowed to keep his fence where it was until he should build a new one is insufficient to show that the village accepted only a part, and refused to accept the remainder.

We are of the opinion that the judgment was against the evidence, and we need not take up the rulings of the court upon propositions of law submitted.

The judgment is reversed, and the cause remanded. Reversed and remanded.

(197 Ill. 411)

CHICAGO & N. W. RY. CO. v. PEOPLE ex rel. McGOUGH.

(Supreme Court of Illinois. June 19, 1902.) ROAD AND HIGHWAY TAX-LEVY-VALIDITYDAY FOR LEVY.

Starr & C. Ann. St. 1896, c. 121, § 13, requires township highway commissioners, when determining the amount of tax to be levied for road and bridge purposes, to meet on the same day on which the board of town auditors meet, which day is fixed by Id. c. 139, art. 13, § 3, and Id. c. 34, § 51. Held, that a road and bridge tax levied on a day other than that prescribed by the statute is void upon the objection of the taxpayer.1

1 See Highways, vol. 25, Cent. Dig. § 384.

Appeal from Kane county court; M. O. Southworth, Judge.

Action by the people, on relation of McGough, against the Chicago & Northwestern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Botsford, Wayne & Botsford, for appellant. William J. Tyers, State's Atty., for appellee.

WILKIN, J. This is an appeal from a judgment of the county court of Kane county entered against the property of appellant for $98.25, being the road and bridge taxes for the year 1900, levied by the commissioners of highways of the township of Aurora, in said county. Upon the filing of the list of delinquent taxes in the county court and application for judgment, appellant filed its objection, as follows: "The road and bridge tax levied as aforesaid is void, for the reason that no meeting of the commissioners of highways for the purpose of making the tax levy was held on the Tuesday preceding the annual meeting of the county board, but was made on the Saturday preceding the time fixed by law for such meeting of the commissioners." The county court overruled this objection, and upon this appeal the only assignment of error is the action of the county court in this regard.

When determining the amount of tax to be levied for road and bridge purposes and for the payment of any outstanding orders drawn by them on their treasurer, the statute requires the commissioners of highways to meet on the same day and at the same place of the meeting of the board of town auditors. Starr & C. Ann. St. 1896, c. 121, § 13. The town auditors are required to meet at the town clerk's office on the Tuesday next preceding the annual meeting of the county board (Id. c. 139, art. 13, § 3); and the time for the meeting of the county board is fixed by statute on the second Tuesday of September of each year (Id. c. 34, par. 51). Instead of meeting on the Tuesday preceding the annual meeting of the county board, the highway commissioners of the township of Aurora met on the Saturday preceding, which was September 1, 1900, and the contention of appellant is that the taxes levied on this day are void because not levied at the time directed by the statute. The objection to the tax should have been sustained. It is well settled that the commissioners of highways can only act in the manner and at the time specified in the statute, and a tax levied at a time other than that specified by statute is void when objected to by the taxpayer. St. Louis Nat. Stock Yards v. People, 127 III. 22, 20 N. E. 84; Chicago & A. R. Co. v. People, 190 Ill. 20, 60 N. E. 69, and authorities there cited.

Counsel for appellee insists there is no evidence in this case that the highway commissioners failed to meet with the town auditors

on the Tuesday next preceding the annual meeting of the county board, as required by statute, and therefore it will be presumed that the officers did meet at the proper time and performed their duty. The record before us not only shows that the tax was levied on September 1, 1900, but it also shows that no other meeting by the highway commissioners for levying taxes was held that year. This is not the case of a "mere error or informality in the proceeding of the officers connected with the levying of the tax, not affecting the substantial justice of the tax itself," as contended by counsel. The exact time is fixed by law for the purpose of giving the parties interested a hearing, if for any reason they should desire it, and therefore to meet at another time to levy the tax may affect the substantial justice of the tax itself. As is said in Chicago & A. R. Co. v. People, supra, the requirement of the statute as to the time of meeting is mandatory.

The judgment of the county court must be reversed, and the cause remanded, with directions to sustain appellant's objection to the tax. Reversed and remanded.

(197 111. 288)

MONARCH COAL & MINING CO. v. HAND. (Supreme Court of Illinois. June 19, 1902.) MORTGAGES-SEPARATE TRACTS-ORDER OF

SALE.

Where a portion of a tract of land, which is incumbered by a mortgage, is sold, and conveyed by a deed which states that the conveyance is subject to such mortgage, the purchaser has no equity, as against the mortgagor, that the portion of the land retained by him shall be first sold on foreclosure of the mortgage.

Appeal from appellate court, Third district. Action by Jane Hand against the Monarch Coal & Mining Company and another. From a judgment of the appellate court (99 Ill. App. 322) affirming a decree of the circuit court in favor of plaintiff, the defendant Monarch Coal & Mining Company appeals. Affirmed.

J. H. Hanley and Grier & Stewart, for appellant. Chiperfield & Chiperfield, for appellee.

CARTER, J. The appellee, Jane Hand, filed her bill in the Fulton circuit court to foreclose a mortgage on 116 acres of land in that county. After the mortgage had been given, the mortgagor, Jonathan A. Emans, sold and conveyed to the appellant company, in fee simple, about three acres of land, together with all the coal, and the right to mine and remove the same, commencing with and lying below the vein of coal known locally as the "third vein," under all the rest of said 116 acres of land. The deed contained covenants of general warranty, but was made "subject to a mortgage to Jane Hand in the principal sum of $3,500." This was the mortgage sought to be foreclosed. The mortga

gor, Emans, and the appellant company, the grantee, were made defendants to the bill. The appellant answered, and also filed its cross bill, and alleged that the consideration for the conveyance to it by Emans was $3,000, to be paid by it, and that that amount was the full value of the property so conveyed, without the mortgage, and that it was not understood or contemplated that appellant should pay any additional or further sum for the property and rights so conveyed to it; and it was prayed in the cross bill that the interest in said lands which had not been conveyed to the appellant should be first offered for sale to satisfy the mortgage of the complainant. The court sustained a demurrer to the cross bill, and on the hearing entered a decree foreclosing the mortgage as prayed in the bill, and ordering the sale of the mortgaged premises, or so much thereof as should be sufficient to satisfy the decree, unless the amount found by the decree to be due should be paid by Emans within 30 days. The decree also provided that the company might pay said amount, with interest and costs, within 40 days, in case said Emans failed to pay the same, and in case of failure to so pay it should be enjoined from committing waste on said lands, and from further mining or removing coal thereon. Said company appealed to the appellate court, but that court affirmed the decree, whereupon this appeal was taken.

The evidence tended to prove that the coal had been removed from under one-half or more of the land, and that the land was scant security for the mortgage debt. We are of the opinion that there is no error in the decree, and that the equitable rule invoked by appellant that where a part of the mortgaged premises has been sold and conveyed by the mortgagor, or several parts to different purchasers, and a decree of sale under a foreclosure is obtained to satisfy the mortgage debt, the several parts should be sold in the inverse order of their alienation, cannot be applied in this case, for the reason that the conveyance to appellant was expressly made subject to the mortgage. In Briscoe v. Power, 47 Ill. 447, this court said: "We held in the case of Iglehart v. Crane, 42 Ill. 261, that, where a mortgagor sells the mortgaged premises in parcels at successive periods, the different parcels should be subjected to the payment of the mortgage in the inverse order of their alienation. That rule rests upon the reason that where the mortgagor sells a part of the mortgaged premises without reference to the incumbrance, purporting to convey the fee simple, and retaining a part himself, it is equitable, as between the mortgagor and his grantee, that the part still held by the mortgagor should be first subjected to the payment of the debt; and, this equity having attached to the land, a subsequent purchaser from the mortgagor with notice takes it subject to the same equity. But it is evident that this reasoning has no application to a

case like the present, where the first purchaser expressly takes subject to the mortgage. In such cases the purchaser has no equity, as against the mortgagor, that the portion still held by the latter shall be first applied to the payment of the incumbrance, and, having no equity against him, of course has none against his grantee. The first purchaser, by taking expressly subject to the mortgage, consents that the land conveyed to him shall remain subject to its pro rata share of the debt." See, also, Moore v. Shurtleff, 128 III. 370, 21 N. E. 775; Boone v. Clark, 129 Ill. 466, 21 N. E. 850, 5 L. R. A. 276; Brown v. McKay, 151 Ill. 315, 37 N. E. 1037. The doctrine thus stated is too well settled to require further comment.

The decision of the appellate court affirming the decree is correct, and the judgment will be affirmed. Judgment affirmed.

1. Where, in an action by a railroad switchman for injuries caused by cars being "kicked" by another crew into those which he was attempting to couple, the evidence as to plaintiff's knowledge of this custom of kicking the cars on the track in question was conflicting, it was error to refuse to submit to the jury the question as to plaintiff's assumption of the risk. 2. Where, in an action by an employé against a railroad company for injuries, the evidence as to whether a release executed by plaintiff had been procured by fraud was conflicting, it was error not to submit such question to the jury.

3. Plaintiff, a switchman working in a "transfer crew," whose duties were to take out trains from the east end of the switch yards to their proper destination, was injured by cars being "kicked" into those he was attempting to couple by a switching crew at the west end of the yards. The duty of this latter crew was to separate and place upon their proper tracks the cars which were brought into the yards by the incoming trains; and they always used the west end of the tracks, and were in the habit of kicking the cars. The switch yards extended about half a mile in length. Held, that the relation of the two crews, their duties, and manner of performing them, were such that all reasonable minds would not agree that they were co-operating with each other in a particular business, and it was error to refuse to submit to the jury the question whether the members of each crew were fellow servants.

Error to appellate court, First district. Action by James Hartley against the Chicago & Alton Railroad Company. From a judgment of the appellate court (96 Ill. App. 227) affirming a judgment in favor of the defendant, the plaintiff brings error. Reversed.

Plaintiff in error prosecutes this writ of error to reverse a judgment of the appellate court affirming a judgment against him for costs in the superior court of Cook county in an action on the case for personal injuries. His declaration consists of but one count, in which he alleges that while he was

in the employ of the defendant in error as a switchman in its yards at Brighton Park, being in the exercise of due care in the performance of his duties, "attempting to couple one of a number of cars which were then and there attached to the engine with which he was working as aforesaid to one of a string of cars then and there standing still in said yard, * * * other servants of the defendant, who were working with a certain other engine, and who, the plaintiff alleges, were not fellow servants of his, negligently, carelessly, and improperly caused to be pushed a certain string of cars against the string of cars which were stationary, and which the plaintiff was attempting to couple onto as aforesaid, putting the said stationary string in motion, and negligently failed to notify the plaintiff of their intention so to do, thereby causing the said stationary string of cars and the said string of cars attached to the engine with which the plaintiff was working to collide violently, suddenly, and with great force; and the plaintiff, as a result thereof, was caught between the drawbars of the said cars he was attempting to couple as aforesaid, and all the fingers of his right hand were then and there so severely crushed that it became then and there necessary to amputate them, and they were amputated," etc. The defendant filed a plea of the general issue, and also a plea of accord and satisfaction, setting forth a release signed by the plaintiff in consideration of $280, purporting to release the defendant from all claim for compensation on account of the injuries set up in the declaration. To the lastnamed plea plaintiff replied that the release therein set up was obtained by fraud. A trial by jury resulted in a verdict and judgment for the plaintiff for $5,000 and costs of suit. On appeal to the appellate court for the First district, that judgment was reversed on the ground that the evidence showed that plaintiff and the servants whose negligence caused his injuries were fellow servants (Railroad Co. v. Hartley, 90 Ill. App. 284), and the cause was remanded to the superior court. The case was again tried on the same evidence produced upon the first trial, and at the conclusion of all the evidence an instruction was given to the jury to find for the defendant, which being done, judgment was entered accordingly. The plaintiff then appealed to the appellate court for the First district, and the branch of that court affirmed the judgment below, but gave plaintiff in error a certificate of importance, upon which he has sued out this writ.

Plaintiff in error, in violation of our rules, has filed in this court, under a different cover, the same brief and argument used in the appellate court. Questions of law being alone open to review in this court, the evidence cannot be properly discussed or considered, except for the purpose of determining whether the trial court erred in taking the case from the jury, that is, whether

there was any testimony produced upon the trial fairly tending to support the plaintiff's cause of action; and the argument here should have been directed to that question, and not to a discussion of the weight of the evidence. We do not wish to be understood as recognizing the practice here resorted to, but inasmuch as the assignment of errors properly raised the question above indicated, and the argument was, no doubt, intended to insist upon that error, the case will be considered on its merits.

The accident occurred on the evening of the 30th of November, 1891, about 8 o'clock, in the company's yards at Brighton Park. Plaintiff had been working with a switch crew in those yards for about five months, with what was called the "transfer engine." He had had some experience as a switchman, and also as a brakeman, prior to his employment by the defendant. The freight yards of the company at Brighton Park are some five or six miles from the center of the city of Chicago.

The

Two main tracks run through the center of the yards from east to west. The yards are divided into the south side and the north side, the division line being the main tracks. On the north side there are about seven side tracks, and on the south side double that number. These side tracks are numbered, starting from the track next to the main tracks, both to the north and to the south. accident happened on the northernmost side track, No. 7, while the plaintiff was attempting to couple cars. The yards are termed "open at both ends," that is, the side tracks at each end connect with lead tracks which connect them with the main tracks. Plaintiff's crew was known as a "transfer crew," it being its duty to take trains of freight cars from any of the side tracks down into the city, either to the Harrison street freight yards of the company, which were some eight or nine miles distant, or to the freight yards of other railroad companies. In doing this work the transfer crew, with its engine, came in upon the side track at the east end of the yards, and was there attached to the cars to be transferred, which were always standing upon one of the side tracks, and pointed out by the yard master. These cars stood upon the side track uncoupled, and it was necessary for the transfer crew to couple up the particular string of cars, and also couple them to the engine, and then take them to the yards for which they were destined. These cars were placed upon the various side tracks by another switching crew, working at the west end of the yard,-the yard being about a half mile long,-taking cars which came from St. Louis and Kansas City. When the freight trains came in from the west they were stop-❘ ped either upon the main tracks, or upon some one of the side tracks south of the main tracks, and left there. The switch engine working at the west end, with its crew, went over and took these freight trains, or such portions of them as it could conveniently

handle, and switched the cars into and upon the various tracks that lay north of the main tracks. In doing this work that switching crew would "kick" the cars down on the various side tracks, the cars going in upon the side track from the west end of the yard. The cars intended to be transferred to the Chicago & Northwestern Railroad Company would be kicked down upon the side track where all of the cars for that particular company were to be placed. A car intended for the Harrison street yards of the defendant company would be kicked down upon track No. 7, and cars for any other railroad would be sent down upon the track upon which all the cars for that particular road were placed. Sometimes a side track would have no cars upon it, and at such times the custom was for a brakeman to get upon the car being kicked down the track, so as to set the brake and prevent it from running out at the other end of the side track, after which, as claimed by the company, cars would be kicked down upon that side track without a man or brakeman attending them; the first car acting as a buffer to stop the others. The cars placed on the side track were left uncoupled, though sometimes several would come in on one train, destined for the same company, and would be kicked upon the side track coupled together, so that it was impossible for the transfer crew to know how many cars upon a side track were coupled together and how many were not. Consequently it was necessary for that crew, before it took its train out at the east end, to look over the couplings, and see that the cars of the train were properly coupled; and whatever number of cars happened to be upon one of the side tracks for transfer would constitute a transfer train, unless there were too many for the engine to pull, in which case a certain number would be left. At the time plaintiff was injured, the switch engine, with its crew, was at work at the west end of the yards, starting out cars and kicking them down upon the various side tracks on the north side; and the transfer engine, with its crew, came in upon the east end of side track No. 7 for the purpose of taking cars upon that track down to the Harrison street yards, and plaintiff and another member of his crew were coupling up the cars upon that side track. There were about 20 cars upon the track, and while plaintiff was in the act of coupling the last car to the rest of the train a number of cars were kicked down by the switching crew without any notice or signal to him or his crew, and his hand was injured as above stated. Subsequently a release for the injuries was signed by him, and the company paid him $280. The testimony on behalf of the defendant company is to the effect that that release was entered into after full explanation to the plaintiff and with all fairness. The plaintiff, on the other hand, testified that he did not understand the terms of the agreement, and that he was promised future employment with the

company in addition to the money consideration.

James C. McShane, for plaintiff in error. Lee & Hay (William Brown, of counsel), for defendant in error.

WILKIN, J. (after stating the facts). The defendant in error urges these three propositions: First, that the plaintiff assumed the risk; second, if injured by the negligence of an employé of the defendant, he and that employé were fellow servants; and, third, the cause of action had been fully adjusted and released to the defendant.

That the plaintiff assumed the risk of the act of other servants of the defendant which caused his injury was a matter of defense. We do not understand counsel to deny that the act of pushing the cars against those which the plaintiff was attempting to couple, without any signal or notice to him, was an act of negligence. An employé can only be held to assume risks of which he has express or implied notice, and it cannot be said that one servant assumes the risk of being injured through the negligence of another, not a fellow servant, unless he has knowledge of the habitual or customary negligence of such other servant. Therefore, even though the evidence showed without contradiction that the cars were thrown upon the side track in the manner alleged in pursuance of a usual custom, still, unless it was also conceded or shown without contradiction that the plaintiff knew of that custom, he could not be legally held to have assumed the risk. On both of the foregoing questions the evidence in this record is conflicting, and therefore the jury should have been allowed to say whether the plaintiff did assume the risk or not. Whether he had released the cause of action set up in his declaration, on the issue made, was also a matter of defense, and, the evidence being conflicting, a question for the jury.

As to the question of fellow servants, it has long been the settled rule of this court that the servants of a common master, to be co-employés, so as to exempt the master from liability on account of injuries sustained by one resulting from the negligence of the other, must be directly co-operating with each other in a particular business, or that their usual duties bring them into habitual association, so that they may exercise a mutual influence upon each other, promotive of proper caution. Railroad Co. v. O'Brien, 155 Ill. 630, 40 N. E. 1023, and cases cited. The definition of fellow servants is for the court. Whether employés of the common master fall within that definition is a question of fact; hence whether or not the relation exists is a mixed question of law and fact. Railroad Co. v. Morgenstern, 106 Ill. 216; Railroad Co. v. Middleton, 142 Ill. 550, 32 N. E. 453; Car Co. v. Laack, 143 Ill. 242, 32 N. E. 285, 18 L. R. A. 215; Railroad Co. v. Massey, 152 Ill. 144, 38 N. E. 787. The burden of proof to establish

the relation is upon the defendant; and that, even though the plaintiff alleges the negative in his declaration. Railroad Co. v. House, 172 Ill. 601, 50 N. E. 151. The question whether the relation of fellow servants exists in a giv en case is always one for the jury, unless the facts admitted or proved beyond dispute show the existence of the relation within the foregoing definition, when it becomes a question of law. Railroad Co. v. Driscoll, 176 Ill. 330, 52 N. E. 921. We held in that case, where the evidence is conclusive and uncontradicted, and reasonable minds must reach the same conclusion on the facts, negligence becomes a question of law; and, on the same principle, "whilst, as a general rule, the question as to whether the relation of fellow servants exists is one of fact, yet where the facts are conceded, or where there is no dispute whatever as to the facts, and they show beyond question that the relation of fellow servants exists, then the question may become one of law."

The branch appellate court upon both appeals of this case seems to have understood it to be controlled by the Driscoll Case, and that authority is chiefly relied upon by counsel for defendant in error to sustain the judgment below. When the facts in that case are considered and compared with the undisputed testimony of the plaintiff and other witnesses in this, the cases are manifestly entirely dissimilar. In the Driscoll Case there were two switching crews,-one known as Hurd's crew, and the other as Ward's. Driscoll had been a member of both crews, and was familiar with their work and the yard and tracks, but at the time of his injury was working with Ward's crew. The duties of the two crews were the same; that is, both crews at times performed the same duties. In stating the facts of that case, we said: "Within the limits of the yard the duties of the two crews were identical, and performed at the same time. Each crew consisted of five men,-an engineer, a fireman, a foreman, and two helpers. One member had the duty of making couplings in the front part of the train, opening switches ahead of the engine, and repeating to the engineer signals from the rear. It was the duty of another member of the crew to act as rear man. His duties were to go to the rear end of the train on a repair track to see that all cars were properly coupled, and the train in proper condition to be moved, to give signals from the rear, and close switches behind the train. These duties were performed by the foreman and helpers indiscriminately. Driscoll had frequently acted as rear man, and was performing those duties on the evening of the accident. There is no dispute about these facts, and they appear from the plaintiff's evidence, and are uncontroverted." In the present case there were not only two switching crews, but their duties were altogether different. One operated an engine at the east end of the yards, making up and