to determine, under all the circumstances, whether the conduct of appellant's driver was negligent or not.

In answer to special interrogatories submitted to the jury by the appellant, the jury specially found that the driver of appellant's wagon was negligent in the management of its team and wagon; that the injury to appellee could have been avoided by the exercise of ordinary care and prudence on the part of the driver of appellant's wagon; that the team which drew appellant's wagon had not been brought to a stop before the collision which caused the injury to appellee; and that the collision was not caused by the backing of the brick wagon moving toward the south.

3. It is further assigned as error that the court refused to given an instruction asked by the appellant, which conditioned the right of the plaintiff to recover upon the belief by the jury from the evidence that the appellee, plaintiff below, had sufficient age and sufficient intelligence and experience to properly understand and comprehend the risk he took in occupying the seat which he did occupy upon the rear end of the wagon. There was no error in refusing this instruction, for the reason that the principle embodied in it, as above stated, was sufficiently set forth in the second instruction, which was given for the appellant at its request.

4. It is assigned as error that the court gave an instruction for the plaintiff below, which conditioned the right of the plaintiff to recover upon the belief and finding of the jury from the evidence "that plaintiff was exercising ordinary care for a boy of his age," etc. The objection to this instruction is that it should have conditioned the right of recovery upon the belief and finding of the jury from the evidence that plaintiff was exercising ordinary care for a boy, not merely of his age, but also of sufficient capacity and experience to comprehend the risk, which he ran in riding upon the tailboard of the wagon. The claimed defect in the instruction was obviated and remedied by the second instruction above referred to, which was given for the appellant at its request. The second instruction so given is as follows: "If the jury believe from the evidence in this case that the plaintiff, at the time of the injury complained of, had sufficient age and sufficient intelligence and experience to properly comprehend and understand the risks he took in jumping onto the rear end of a passing wagon and thus remaining and riding, then you are instructed that the law charges him with the same responsibility for his conduct as if he were of full age, and that want of ordinary care on the part of the plaintiff, if shown by the evidence, would be a complete defense to his suit, the same as if he were of full age."

5. It is further assigned as error that the court below gave an instruction, at the re

quest of appellee, which mentioned, among the elements of damage for which recovery might be had, "any loss of time and inability to work and earn a livelihood for himself, after he attains the age of twenty-one (21) years, if any, which the jury may believe from the evidence he will sustain on account of such injuries." A correct disposition is made of this assignment of error by the appellate court in their opinion, where they say (89 Ill. App. 368): "It is argued that there was no evidence in the case upon which the jury could reasonably base a belief that there would be any such loss of time or inability after the appellee attained his majority. It is true that no medical expert testified that the injury to appellee was a permanent injury, nor that it would be likely to continue to affect appellee for any specified length of time. Nevertheless, the jury might, from the evidence in the case, have properly concluded that the injury was a permanent one, or that it would continue to cause loss of time and inability to work after appellee had attained his majority. Appellee testified that the leg was cut open to the bone; that seventeen stitches were taken in sewing up the wound; that he was upon crutches for six weeks after the injury, and was not able to go to work for more than three months. He also testified that at the time of the trial the leg still troubled him when he walked 'far'; that he then was obliged to sit down and rest; and that it did not seem to be getting better in that respect. Another witness testified that 'the leg was split open about four or six inches, gashed to the bone,' etc. The injured limb was exhibited to the jury. We cannot say that the jury might not, from this evidence, have reasonably concluded that the injury was permanent, and would occasion some degree of incapacity for labor after appellee reached the age of twenty-one, if he lived to that time."

I do not think that there is any error in this record which would justify me in voting to reverse the judgment of the appellate court.

1. The county, in bringing suit, may resort to any court in the county of defendant's residence having jurisdiction of the subject-matter; Rev. St. c. 31, § 31, merely containing restriction as to the courts in which a county may be sued.

2. Demurrers are waived where, after they are overruled, the party pleads on the merits. 3. An insane person cared for in the county insane asylum, having means, is liable to the county for board, care, and medical attention, as his relatives would be were he a pauper.

1 Rehearing denied June 5, 1902.

4. An insane person is not relieved from liability to pay for his board in the county insane asylum merely because no charge was made against him for some years; any intention of county officers not to charge therefor not being binding on the county.

Appeal from appellate court, Second district.

Action by the county of Kankakee against Luc Dandurand. From judgment of the appellate court (96 Ill. App. 464) affirming judgment for plaintiff, defendant appeals. Affirmed.

The appellate court makes the following statement: "This was a suit brought by the county of Kankakee against Luc Dandurand for his board, lodging, support, care, and medical treatment in the Kankakee county insane asylum, a department of its poor house. The declaration contained five counts. Defendant filed a plea to the jurisdiction of the court. A demurrer to this plea was sustained. The plea was amended, and demurrer again sustained to it. Defendant then demurred to the first four counts of the declaration. This demurrer was sustained as to the first and second counts, and overruled as to the third and fourth. Defendant pleaded the general issue and the five-years statute of limitations to the third, fourth, and fifth counts. A trial was had without a jury. Defendant presented eight propositions of law. The court held the seventh, and refused the others. The court found for plaintiff in the sum of $520, and rendered judgment therefor." Defendant prosecuted his appeal, his conservator executing the appeal bond in his name, to the appellate court, where the judgment was affirmed, and this appeal is prosecuted from such judgment of affirmance, a certificate of importance having been granted.

Granger & Granger, for appellant. W. J. Brock and B. L. Cooper, State's Atty., for appellee.

PER CURIAM. In deciding the case, the appellate court, in its opinion, expresses the following views:

"First. It is argued the court erred in sustaining the demurrer to the amended plea to the jurisdiction. The position taken is that the county court does not have jurisdiction of a suit brought by the county. Reliance is had upon section 31, c. 34, of the Revised Statutes. That section restricts the courts in which suit against a county may be brought, but contains no such restriction in cases of suits brought by a county. The county bringing a suit may resort to any court having jurisdiction of the subject-matter in the county where the defendant resides. The action was assumpsit, and the damages were laid at $1,000. The county court had jurisdiction of such a case. We find no error in sustaining the demurrer to

said plea. Defendant also argues that the court erred in overruling his demurrer to the third and fourth counts of the declaration, but, by thereafter pleading to said counts upon the merits, demurrer was waived.

"Second. On February 6, 1888, Dandurand, in proper proceedings in the county court, was adjudged insane, and ordered committed to a state hospital for the insane, and be was then placed in the state insane hospital at Kankakee. On August 19, 1893, the superintendent of the Kankakee county poor farm and insane asylum, acting, as he testified, under orders either from the state asylum or the county clerk, but which he did not remember, went to the state asylum and took Dandurand therefrom, and brought him to the county insane asylum, where he has ever since remained and been cared for by the county at public expense, except that his conservator paid for his clothing. The discharge book of the state asylum states his condition when he left as 'stationary.' While his then conservator did not know of the removal at once, both he and the present conservator did learn of it soon after it occurred, and more than five years before this suit was begun. Neither side proved the special circumstances under which the state authorities returned Dandurand to the county authorities. Section 17, c. 85, of the Revised Statutes authorized the superintendent of the state hospital to return quiet, harmless, chronic patients to the counties from which they were sent, under certain circumstances, and we must presume this officer discharged his duty, till the contrary appears. But, irrespective of that, this patient was returned to the county authorities. He was in need of board, care, and medical attention, and was obviously unfit to be at large, and the county furnished him that care. His conservator knew the facts, and did not offer to provide for him elsewhere, or take any steps to have any change made. We are of opinion defendant was impliedly liable for these necessaries so furnished him. Dandurand had an estate amounting, at the time of the trial. to about $2,500. It appears from the proofs that no one was dependent upon him for support, and that no one is entitled to anything from said fund but Dandurand himself. Section 17, c. 86, of the Revised Statutes requires the conservator to apply the income and profit of his ward's estate, so far as may be necessary, to the comfort and suitable support of his ward. Speaking of statutes then in force similar to our present statute relative to paupers, the court, in City of Alton v. Madison Co., 21 Ill. 115, said that to become a public charge a person must be poor and unable to earn a livelihood, and be without any of the enumerated relatives of sufficient ability for his support; that a person having sufficient means for his own support was not within the provisions of the law making his support a public charge; that

there can be no reason why the public should be charged with the support of a person havIng ample means for that purpose, and that to support him as a public charge, where he has ample means, would not be just; that an insane person having property adequate to his support is not a pauper, and consequently the county is not liable for his support. It is true, the questions discussed there arose in a different way from what they do here. There the city of Alton had supported an insane person possessed of property, and sued the county to recover therefor. But the principles there laid down are of a general character. If Dandurand had been a pauper, his relatives would have been liable to the county for his support, under the provisions of chapter 107 of the Revised Statutes, entitled 'Paupers.' How can it be said that because he has means both he and his relatives are exonerated, and the county must bear the charge? We are satisfied the court below correctly held him liable.

"Third. It is urged that as the county officers had not made a special charge against him, and had taken no action to compel him to pay till a year or two before this suit was brought, the county is not entitled to recover for support prior to that time. as it is presumed the county intended not to charge for said support prior to that time. We think the intention does not enter into the case where the support is by a public body. If he was liable for his own support under the law, there was no officer who could form an intention that gratuitous service should be rendered. which would bind the county and release defendant from liability. Nor can such intention be manifested by a failure to inaugurate some system of bookkeeping and of making charges against the insane patient, nor by a failure of the county officers to promptly ascertain and enforce the legal rights of the county.

"Fourth. The proof was that the services rendered were reasonably worth two dollars per week, and this was not controverted, and the court allowed two dollars per week for the five years preceding the commencement of the suit. The proof showed the mere dieting of the inmates of the county insane asylum cost the county less on the average than that sum. This is immaterial, for that is not all defendant received. He had his lodging, medical attention, and nursing, and such supervision and control as he might require by reason of his insanity, and upon this record we think he has no cause to complain of the moderate sum allowed.

"The action of the court upon the propositions of law was in harmony with the views herein expressed. The judgment is affirmed."

We concur in the foregoing views and in the conclusion reached by the appellate court. The judgment of the appellate court is accordingly atfirmed. Judgment affirmed.

(196 I11, 496)

CITY OF CHICAGO v. JACKSON.1 (Supreme Court of Illinois. April 16, 1902.) MUNICIPAL STREETS-CHANGE OF GRADETAKING PRIVATE PROPERTY-DAMAGES-EVIDENCE HARMLESS ERROR.

1. Where a city ordinance requires a railroad to elevate its tracks at a street crossing, and to lower at the intersection the grade of the street crossed, the owner of premises in front of which the street is lowered may recover from the city damages for any injury he may suffer by the change of grade, under the constitutional provision forbidding the taking of private property for public use without compensation.

2. Where, in an action for the injuries, a witness had stated the depreciation of property over the entire city, owing to "hard times,' and on parallel streets, when the court suggested that the witness limit his testimony to property within two or three blocks of that in question, the court's action was not error, as limiting the testimony to the fall in value within a few blocks.

3. It was proper not to permit a witness for defendant to testify as to the rate per cent. of benefit that had accrued to other property on subways, the witness having testified to the increase in value of plaintiff's property.

4. It was error to admit evidence that traffic had been diverted from plaintiff's side of the street, as an element for the jury to consider in assessing damages.

5. The error was not cured by an instruction that the evidence as to traffic could only be considered in determining whether access to plaintiff's premises had been interfered with.

6. It was error to admit evidence as to the number of trains which stopped at the station near the property before and after the change of grade.

7. It was error to admit evidence as to the number of tenants in a building opposite to that of plaintiff.

8. The evidence showed that the sidewalk and street in front of plaintiff's premises had been lowered, the one to the extent of four feet, and the other to the extent of eight. One witness placed the damages at $3,000, another at $3,500 to $4,000, another at $3,400, and another at $4,000. One witness testified the building could be brought to grade for $2,534.86, another fixed the cost at $2,534, and another at $2.529.35. Another stated a lowering of the building below the street level to be the only feasible remedy, and that such course would cost $2,080.40. Held, that a verdict for $2,000 was reasonable.

9. It appearing that no decision more favorable to appellant would result from another trial, the judgment would not be reversed for the errors in admitting evidence.

Appeal from appellate court, First district. Action by John Jackson against the city of Chicago. From a judgment of the appellate court (88 Ill. App. 130) affirming a judgment for plaintiff, defendant appeals. Affirmed.

Charles M. Walker, Corp. Counsel, and Thomas J. Sutherland, for appellant. Hamlin & Boyden, Louis M. Greeley, and H. S. Mecartney, for appellee.

PER CURIAM. This action on the case was brought in the superior court of Cook county by appellee against appellant to recover damages for an injury to property front

1 Rehearing denied June 5, 1902. See 63 N. E. 1135.

ing on West Fortieth street. In his declaration he avers that his property fronted on said street, and that prior to the acts complained of there was direct and convenient access to the same from the street, as well as egress therefrom, for persons and vehicles; that the street in front of the premises was level, and on the same grade with the street. He then avers that the defendant, regardless of the rights of the plaintiff, in the year 1895 wrongfully excavated, or caused to be excavated, the said street in front and adjacent to his premises, and constructed therein a subway of wood, stone, iron, and other materials, of great depth below the grade of the street as it existed prior thereto (describing the depression of the street and construction of the subway), and charges that by means thereof the free and convenient access to his premises, and free communication between said premises and the street, have been entirely destroyed and cut off, and the said premises rendered unfit for the uses to which they were best adapted and for which they are most valuable, and the reasonable enjoyment and use of the same seriously interfered with, by means of which his rights in the premises have been violated, etc. He further avers that the excavation and subway were without his consent, and without making any compensation to him for the damages and injury occasioned, and without any proceedings to ascertain such damages as provided by law, and that the defendant has refused and still refuses to make such compensation. The city filed a plea of not guilty, upon which issue was joined, and the case tried by the jury. At the close of all the evidence the defendant asked the court to instruct the jury to return a verdict in its favor, but the request was denied, and an exception duly taken. The jury was then instructed that "if they believed from the evidence that the plaintiff's property was depreciated in its fair cash market value by the change of grade in the street, over and above any benefit conferred upon the property by the improvement, taken as a whole, they should find the defendant guilty, and assess the plaintiff's damages at such sum as they believed, from the evidence and under the instructions of the court, such property had been depreciated in its fair cash market value by reason of such change of grade." To the giving of this instruction the defendant also duly excepted. A verdict was returned in favor of the plaintiff, fixing his damages at $2,000, upon which the superior court, after overruling a motion for new trial, entered judgment. The city appealed to the appellate court for the First district, where the judgment was affirmed, and it now prosecutes this further appeal.

It appeared from an ordinance of the city introduced in evidence upon the trial, passed February 18, 1895, that the Chicago & Northwestern Railway Company was required to

elevate the plane of its roadbed and tracks across this and other streets so as to obviate the grade crossings; that company having, at the time, its railroad track across the streets on the same level. The ordinance describes at length the required elevation of the railroad tracks, and provides (section 4) for subways changing the grade of the "At * street, as follows: the above named streets and avenues [West Fortieth street being one of the streets named], subways therein shall be constructed, passing through said embankments and beneath said tracks so to be elevated as aforesaid, as follows: * All of which said sub

* *

ways shall generally conform to the descriptions and dimensions contained in a schedule hereunto annexed and made part of this ordinance, entitled 'Schedule of Sub-Ways.'" The schedule of subways describes the manner in which the excavations shall be made, how the subways shall be constructed, etc. Section 15 provides that "when said railway shall be elevated in accordance with the provisions of this ordinance, or when any section thereof shall be so elevated and ready for use, then and thereupon all provisions of the ordinances of the city relating to speed of railway trains in said city, the giving of signals upon such trains, and the maintenance of gates, flagmen, watchmen, signals and signal-towers, shall cease to be applicable to such railway company so far as the lines of said road shall be elevated as herein required." Section 16 provides that the ordinance shall take effect from and after its passage, approval, and publication, provided that it shall be null and void unless said railway company shall, through its authorized officers, file with the mayor of the city, within 60 days from the passage of the ordinance, an agreement, duly executed, whereby said railway company shall undertake to do and perform all the matters and things required of it by the ordinance, which "agreement by said railway company shall be made as a return for any liabilities

against it for any damages to adjacent property or business in consequence of change of grade of streets, avenues, alleys or the railway, or of the performance by the railway company of the matters and things in this ordinance required of the railway, and which agreement shall be held to relieve and protect said company from all liability to said city or others for such damages to adjacent property or business in consequence of change of grade of streets, avenues, alleys or the railway, or of the performance by the railway company of the matters and things in this ordinance required of it, save that for any damages occasioned by the negligent manner of doing said work by said company it shall be liable. After the filing of said agreement, as aforesaid, this ordinance shall not be materially modified or amended without the consent of said railway company, but nothing in this ordinance con

tained shall be deemed a waiver or surrender of the police power of the city or to deprive the city of the right to properly exercise such power." It further appears that the railway company did accept the provisions of the ordinance, and elevated its tracks in conformity with the provisions thereof, making the subways as therein provided.

The plaintiff's property described in the declaration is situated on the south side of the railroad, fronting on said street; there being an alley between it and the right of way of the railroad company. The improvement was a two-story brick building; the first story being occupied as a saloon, and the second story for roomers. The first floor, prior to the excavation, was nearly on a level with the street. In making the subway the railroad company cut down the street in front of the building, so that the sidewalk is now four feet above the roadway, and the floor of the building four feet above the sidewalk, making the floor eight feet above the grade of the street, and requiring seven steps in the sidewalk at the northwest corner of plaintiff's building, and seven steps from the sidewalk in order to reach the level of the first floor of the house. It is not denied by the city that the property was damaged in the manner alleged.

The theory of the plaintiff's case is that the city having thus changed the grade of the street, or caused the same to be done, so as to damage his property, he is entitled to recover under that provision of the constitution which provides, "Private property shall not be taken or damaged for public use without just compensation." The city insists there can be no recovery, for the reason that "private property has not been taken for public use," but that whatever injury has been done to plaintiff's property is the result of the legitimate exercise of the police power of the state, and the damages damnum absque injuria. Therefore, it is insisted, it was error in the trial court to refuse the peremptory instruction to find for the defendant, and to give instruction No. 1 on behalf of the plaintiff. The question in this form is a new one in this state, and, so far as we have been able to ascertain, has never been directly decided by any court. It is a question of the first importance both to the city and property holders upon streets over which the railroads in the city must be elevated, in the interest of the public safety to life and property.

It would seem from section 15 of the foregoing ordinance that the improvement was made rather by the agreement of parties than by the order or command of the city, and that both parties understood and contemplated damages to private property as a result of the work. That section is wholly inconsistent with the idea that the tracks of the railroad were elevated and the subway constructed in obedience to a requirement of the city in the exercise of its police power.

But aside from any question of that kind, we think the judgments of the superior and appellate courts on this branch of the case must be affirmed. It is conceded by all parties that the municipality had the right, in the legal exercise of its police power within reasonable limits, to require the railroad company to elevate its tracks so as to avoid the grade crossing upon the street, and thus protect the lives and property of its citizens. Chicago & N. W. Ry. Co. v. City of Chicago, 140 Ill. 309, 29 N. E. 1109; New York & N. E. R. Co. v. Town of Bristol, 151 U. S. 556, 14 Sup. Ct. 437, 38 L. Ed. 269; Chicago. B. & Q. R. Co. v. City of Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 41 L. Ed. 979. Many other authorities might be cited to the same effect, but the question is now regarded as not an open one. It is also well settled that every corporation and citizen holds its or his "property subject to the proper exercise of this power, either by the state legislature directly, or by public corporations to which the legis lature may delegate it. Laws and ordinances relating to the comfort, health, convenience, good order, and general welfare of the inhabitants are comprehensively styled 'police laws or regulations'; and it is well settled that laws and regulations of this character, though they may destroy the enjoyment of individual rights, are not unconstitutional, though no provision is made for compensation for such disturbance. They do not appropriate private property for public use, but simply regulate its use and enjoyment by the owner. If he suffers injury, it is either damnum absque injuria, or, in the theory of the law, he is compensated for it by sharing in the general benefits which the regulations are intended and calculated to secure." Dill. Mun. Corp. § 212; Sedg. St. Const. Law, 435; Bancroft v. City of Cambridge, 126 Mass. 438; Old Orchard Beach R. Co. v. County Com'rs, 79 Me. 386, 10 Atl. 113. The maxim of the law is, "Salus populi est suprema lex," -the safety of the people is the supreme object of the law. It is not a taking of private property for public use, but a restraint on the wrongful use of property by the owner in violation of the rule, "Sic utere tuo ut alienum non lædas." See authorities above, and People v. Budd, 117 N. Y. 1, 22 N. E. 670, 682. 5 L. R. A. 559, 15 Am. St. Rep. 460; State v. Moore, 104 N. C. 714, 10 S. E. 143, 17 Am. St. Rep. 696; Chicago, B. & Q. R. Co. v. State, 47 Neb. 549, 66 N. W. 624, 41 L. R. A. 481, 53 Am. St. Rep. 557; Bank v. Sarlls, 129 Ind. 201, 28 N. E. 434, 13 L. R. A. 481, 28 Am. St. Rep. 185.

The cases in which the right to exercise the power has usually arisen are cases between the state, or some municipal corporation to which the power had been delegated, asserting the power, and the party against whose conduct or property it was sought to be enforced. The long list of authorities cited by counsel for appellee are of this class, among which is Chicago & N. W. Ry. Co. v.