As

appears that on October 25, 1892, at a meeting of the board of directors of the South Park Club Association, a resolution was passed by the board authorizing the president of the association to execute and deliver the chattel mortgage to Thomas W. Sprague. the mortgage was dated October 15, 1892, and acknowledged October 22, 1892, it is said that this resolution was passed after the execution of the mortgage, and that, therefore, its execution could not have been authorized by the resolution. The theory of plaintiff in error is that this resolution did not ratify a mortgage already executed, but authorized the execution of one in the future. If the fact as to the authorizing of the mortgage was before us for our consideration, the evidence shows that the mortgage was not delivered until after the passage of the resolution, and was then delivered in pursuance of the resolution. The mortgage only became effective from the time of the delivery of it, and this delivery was made after the passage of the resolution. The question, whether or not the mortgage was executed without authority was a question of fact, and is settled by the decision of the appellate court. It is true that among the propositions of law submitted to the trial court by the plaintiff in error, and refused by the court, was one which announced that the court should hold that the chattel mortgage in evidence was executed without authority. But the submission of this proposition did not make the question a question of law. A question of fact cannot be converted into a question of law by putting it in the form of a proposition to be acted upon by the court. While the statute authorizes the submission of "written propositions to be held as law in the decision of the case" in trials before the court without a jury, and exception to be taken to the ruling upon such propositions, yet it does not authorize such exception to be taken to the rulings of the court upon questions of fact. In other words, the statute does not provide that propositions of fact should be submitted to the court to be held or refused, but embraces propositions of law only. Field v. Crawford, 146 Ill. 136, 34 N. E. 481; First Nat. Bank v. Northwestern Nat. Bank, 152 Ill. 296, 38 N. E. 739, 26 L. R. A. 289, 43 Am. St. Rep. 247; Order of Foresters v. Schweitzer, 171 Ill. 325, 49 N. E. 506. It follows that the objection that the execution of the mortgage was without authority is not well taken.

4. It is next contended that the acknowledgment was invalid, as having been taken before the wrong justice. The justice before whom the chattel mortgage was acknowledged was a justice of the peace of the town of Hyde Park, and it is said that the mortgage should have been acknowledged before a justice of the peace of the town of South Chicago, because the mortgage recites upon its face that the mortgagor, the South Park Club Association, is "a corporation organized under the laws of Illinois of the town of South Chicago." The recital in the mortgage

that the mortgagor was of the town of South Chicago did not estop the mortgagee from showing that the mortgagor's residence was in fact in some other town. Terhune v. Matson, 40 Ill. App. 296. The testimony shows that the South Park Club Association had its office and place of business in the town of Hyde Park, and no office or place of business except in that town; and the property in question, at the time of the execution of the mortgage, was located in Hyde Park. The statute requires that the mortgage shall be acknowledged before a justice of the peace of the town or precinct where the mortgagor resides, and we think that, in view of what has been said, this provision of the statute was complied with in the present case, and so far as this mortgagor corporation is concerned.

5. The next objection is that Sprague was precluded from trying his title in this action upon the replevin bond, upon the alleged ground that, under an order of court, he could only try his title in the original replevin suit. The chattel mortgage was extended to June 15, 1893, but it appears that theretofore, on March 25, 1893, a creditors' bill was filed in the circuit court of Cook county by Harris & McGimsie against the South Park Club Association, and that on March 29, 1893, a receiver was appointed by the court to take possession of the property of the association, and that he did take possession of such property pursuant to the order of the court, including the property here in controversy. The receiver was in possession of the property when the debt secured by the chattel mortgage became due in June, 1893. The receiver's interest in the personal property in his possession was sold at public sale and struck off for $25 to Harris & McGimsie, but without prejudice to any rights of Sprague; and the receiver was directed to sell and deliver the property to Harris & McGimsie subject to the rights of Sprague. In June 1893, Sprague filed an intervening petition in the chancery case, first without leave of court, but afterwards refiled it with leave of court, which petition recited the execution of the chattel mortgage to Sprague, and the extension of the mortgage, and prayed that an order be entered requiring the receiver to show cause why he should not turn over the property in the chattel mortgage to Sprague, the petitioner. Subsequently, and after the sale of the property by the receiver as above stated, an order was entered directing that the petition of Sprague be dismissed without prejudice to his rights, if any, "to be asserted in some other manner," and further reciting that Harris & MeGimsie should not remove the property until Sprague had an opportunity to replevy the same, but should permit it to remain on the premises for at least 10 days for that purpose. All parties were, by the order, restrained from interfering with Sprague's right to obtain possession of the property by writ of replevin, and it was ordered "that all questions of right and title of said personal prop

erty shall remain open and undisposed of, to be settled and determined in said replevin suit," etc. It is in view of this order entered in the chancery suit that this objection is insisted upon. It is contended by plaintiff in error that by this order Sprague was confined to the replevin suit, as a means of asserting bis title, and could not assert it in this action on the replevin bond. The purpose of the order was not to restrict Sprague in the assertion of his rights in the property to the replevin suit, but merely to preserve his right to assert his claim in that manner. The order in the chancery suit left his rights open for determination "in some other manner" than by means of the chancery suit. Even, however, if this is not a correct construction of the order, section 26 of the replevin act provides that, "when the merits of the case have not been determined in the trial of the action in which the bond was given, the defendant in the action upon the replevin bond may plead that fact and his title to the property in dispute, in said action of replevin." 3 Starr & C. Ann. St. (2d Ed.) p. 3388. The action on the replevin bond is merely a continuation of the replevin proceeding. The statute gives the party the right to set up his title, either in the replevin proceeding or in an action on the bond, where the merits have not been tried in the original case. O'Donnell v. Colby, 153 Ill. 324, 38 N. E. 1065. Here, the merits were not tried in the replevin suit, as a nonsuit was taken. The chancery court had no power to deprive Sprague of the use of any legal process to which he was otherwise entitled to resort; and the order was broad enough to give him the right to assert his title in an action on the replevin bond for the purpose, at any rate, of reducing the damages. It follows that the objection now under consideration is without force.

6. Further complaint is made by the plaintiff in error that the equitable plaintiffs were entitled to recover attorneys' fees incurred in the original replevin suit. The stipulation of facts upon which the case was tried provides that, "if the plaintiff in this case is entitled to recover an attorney's fee for defending the replevin suit, in which the bond sued on was given, $50.00 is a reasonable fee therefor." We are inclined to think that appellant was entitled to a judgment for nominal damages, and for his costs and attorney's fees to the amount fixed by the stipulation. Schweer v. Schwabacher, 17 Ill. App. 78; Harts v. Wendell, 26 Ill. App. 274; Dalby v. Campbell, Id. 502; Horner v. Boyden, 27 Ill. App. 573; Siegel v. Hanchett, 33 Ill. App. 634; 2 Suth. Dam. (2d Ed.) § 505.

Accordingly, the judgments of the appellate and circuit courts are reversed, and the cause is remanded to the circuit court, with directions to proceed in accordance with the views herein expressed.

Reversed and remanded.

(196 Ill. 410)

CHICAGO CITY RY. CO. v. TUOHY.1 (Supreme Court of Illinois. April 16, 1902.)

STREET RAILROADS-ACTION FOR INJURIESCHILD ON TRACK-EVIDENCE-SUFFICIENCY - ADMISSIBILITY - CREDIBILITY OF WITNESSES-PREVIOUS CONTRADICTORY STATEMENTS JURY QUESTIONS — CONTRIBUTORY NEGLIGENCE-CAPACITY OF CHILD UNDER SEVEN-NEGLIGENCE OF PARENT-IMPUTATION-INSTRUCTIONS.

1. Plaintiff's evidence tended to show that, when he, a six year old boy, was run over by defendant's electric street car, he was standing on defendant's track, about 20 feet from a street crossing, with his back towards the approaching car, and talking to a boy standing on the sidewalk; that the car was running about 16 miles an hour; that no bell was sounded for the crossing, and that, when the boy on the sidewalk saw it, he warned plaintiff, who attempted to get off the track, but too late, the car being only 15 feet away; that plaintiff was standing in full view of the motorman; and that, when the car stopped after running over him, it had passed him 75 fcet. Defendant's evidence tended to contradict plaintiff's on all material points, and there was evidence of previous contradictory statements by plaintiff's principal witnesses. Held, that the evidence was sufficient to justify the submission of the case to the jury.

2. The fact that a street car runs an unusual distance before it is stopped, after running over a person, is some evidence of improper management thereof.

3. Where, in an action against a street railway company for injuries, defendant introduced evidence, based upon notes taken in an interview with plaintiff's witnesses immediately after the accident, and on a subsequent interview between such witnesses and defendant's attorneys, which was taken down by a stenographer, tending to contradict the testimony of the witnesses at the trial, whether the witnesses were in fact contradicted was for the jury.

4. In an action against a street railway company for injury to a child of tender years, it appeared that he had been going for several months to a school two blocks from his house, to reach which he had to cross defendant's tracks, which ran by the school; but it did not affirmatively appear that he went to school alone, and his mother testified that she never allowed him to go alone to visit his playmates, only a block and a half away. Held, that the evidence was insufficient to show that the child was of sufficient intelligence or capacity to exercise any care for his own safety, especially in view of the presumption that defendant obeyed the law and exercised greater care at the crossings frequented by school children than at the ordinary crossing, where the child was injured.

5. A child under seven years of age is incapable of such conduct as will constitute contributory negligence.

6. The giving of an instruction which states the law incorrectly is not reversible error, where it appears that under the evidence the jury could not have found otherwise than in accordance with the effect of the instruction.

7. Where an instruction, in an action against a street railway company for injury to a pedestrian, that defendant, in using the highway, was bound to use "every reasonable effort to avoid injury to others," was qualified by other instructions that defendant was not bound to use the highest degree of care, but only ordinary care under the circumstances of the case, any possible error in the first instruction was cured by the others.

Rehearing denied June 4, 1902.

8. in an action against a street railway company for injuries, the court instructed that in considering the credibility of witnesses, and in determining the worth of their testimony. the jury might consider the fact that a witness was in defendant's employ, and also his connection, if any, with the accident complained of. Other instructions stated that defendant's employés were competent witnesses, and that their testimony could not be arbitrarily rejected because they were such employés, and that, if the jury believed that any witness was interested in the result of the suit, they might consider such interest, together with all the other circumstances which would aid them in determining the credit to be given such witness. Held, that any possible defect in the first instruction was cured by the others. 9. In an action against a street railway company for injury to a six year old boy, which was tried four years after the accident, plaintiff testified that he did not remember how he was hurt, whereupon defendant introduced evidence of previous statements made by him to his playmates as to the manner in which he was injured. Held, that there was no error in instructing that the admissions of a child of plaintiff's age when his admissions were made should be received more cautiously than those of an adult, and should be weighed with reference to his age and understanding.

10. The negligence of the parent of a child six years old in allowing him to go across street car tracks with a boy eleven years old was not imputable to the child, so as to support the defense of contributory negligence to his action for injuries received through the negligence of the railway company.

Appeal from appellate court, First district. Action by John Tuohy, by his next friend, against the Chicago City Railway Company. From a judgment of the appellate court (95 Ill. App. 314) affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.

This is an action on the case, begun on February 24, 1896, by the appellee against the appellant company, to recover damages for a personal injury. The trial in the circuit court resulted in verdict and judgment in favor of appellee. This judgment has been affirmed by the appellate court. The present appeal is prosecuted from such judgment of affirmance. The appellee, a boy between five and six years of age, was on April 17, 1895, struck by one of the electric cars of the appellant company on Thirty-Fifth street, in the city of Chicago, near the corner of Wood street. The car ran over the appellee, and crushed his leg in such a way that it had to be amputated at a point about one-third below the knee. Thirty-Fifth street runs east and west, and Wood street runs north and south. When the injury occurred, the car which struck the appellee was coming from the west and going east on Thirty-Fifth street. The evidence tends to show that the injury occurred about 20 feet east of the crossing or intersection of Wood street with Thirty· Fifth street. The next street west of Wood street, running north and south, which crosses Thirty-Fifth street, is Honore street; and the next street west of Honore street, running north and south, which crosses Thirty-Fifth street, is Lincoln street. The next street east of Wood street, running north and south, and

which crosses Thirty-Fifth street, is Hermitage avenue.

Wm. J. Hynes, Samuel S. Page, and Watson J. Ferry (Mason B. Starring, of counsel). for appellant. Altgeld, Darrow & Thompson and P. A. Hines, for appellee.

MAGRUDER, J. (after stating the facts). 1. At the close of the evidence of appellee (the plaintiff below), the appellant (defendant below) asked the court to give the jury a written instruction to return a verdict of not guilty. This instruction was refused, and exception was taken to such refusal. At the close of all the testimony in the case. the defendant below again presented to the court a written instruction directing the jury to return a verdict of not guilty, and asked the court to give such instruction. The court refused to do so, and exception was taken to such refusal. The question is thus raised whether or not the evidence justified the court in submitting the case to the jury. Where the evidence before the jury, with all the inferences proper to be drawn therefrom, tends to prove the cause of action set out in the declaration, the court should not peremptorily direct the jury to return a verdict of not guilty. Bridge Co. v. Teehan. 190 Ill. 374, 60 N. E. 533.

The cars of the appellant upon ThirtyFifth street were propelled by electricity by means of electric wires strung overhead, and were known as "trolley cars." There were two tracks laid in Thirty-Fifth street; the cars going east running upon the south track. and the cars going west running upon the north track. The car which inflicted the injury had stopped at Lincoln street, two blocks west of Wood street, to take on a passenger, but after that did not stop until it passed beyond Wood street to the point where the appellee was injured. Just before the accident the appellee was standing in company with another boy, 11 years old, named Th mas Bonner, near the intersection of Wood street and Thirty-Fifth street, on the south side of Thirty-Fifth street, and near the corner made by the intersection therewith of Wood street. The sidewalk was about 14 feet wide between the curb and the building line of the houses fronting upon the street. The space between the curb at the edge of the sidewalk and the south rail of the appellant's south track was about 12 feet. At that time appellee lived with his father and mother on Thirty-Fourth court, near the corner of an alley west of Wood street, and not much farther than a block or a block and a half from where the accident occurred. The boy Thomas Bonner lived with his father on Wood street, about a block and a half from where the appellee lived. Frank Bonner, the father of Thomas Bonner, was a lamplighter in the employ of Michael J. Tuohy, appellee's father. The accident occurred about 5 o'clock in the afternoon. There

was a lamp-post about 82 feet east from the southeast corner of Wood and Thirty-Fifth streets. Frank Bonner had sent his son, the boy Thomas Bonner, to the house of appellee's father, to get a filler of oil for the purpose of filling some of the street lamps. Upon going to the house of appellee's father to get the oil, appellee asked permission to accompany Thomas Bonner, and his mother permitted him to do so. They went south, and crossed the tracks, and stood near the corner of Wood and Thirty-Fifth streets, on the south side of Thirty-Fifth street, while Frank Bonner, the father, was lighting the lamp, distant 82 feet from the corner, or thereabouts. Frank Bonner had requested the boys to stand at the corner until he finished lighting the lamp. There is testimony in the record tending to prove that the car which caused the injury was traveling at an unusually high rate of speed; that is to say, 'from 14 to 16 miles an hour, according to the testimony of some of the witnesses. There is also evidence tending to show that no bell was rung or gong sounded upon the approach of the car to the street crossing.

It is incumbent upon those in control of a street car to exercise a greater degree of care or watchfulness at street intersections than at other places along the route. Booth, St. Ry. Law, § 306; Railroad Co. v. McCallum, 169 Ill. 240, 48 N. E. 424; Railway Co. v. Robinson, 127 Ill. 9, 18 N. E. 772, 4 L. R. A. 126, 11 Am. St. Rep. 87. Drivers, gripmen, and motormen of street cars are obliged at all times to exercise reasonable care in the conduct of their cars; but the requirement of reasonable care imposes upon them a more exacting attention when they approach street crossings in a crowded city, where vehicles and pedestrians may always be expected in front of them. "The failure under such circumstances to ring the bell, sound the gong, or give other proper warning,

is

undoubtedly evidence of negligence to be submitted to a jury under all the circumstances," whether there is an ordinance requir ing such precautions or not. The increase of danger to the public at such crossings demands a corresponding increase of vigilance and energy on the part of such drivers, gripmen, and motormen. They ought to notice whether or not the track is clear when they approach such public crossings, and sound the gong as warning. 2 Thomp. Neg. §§ 13991401.

Counsel for appellant insist that the appellee was not at the crossing. While this may be strictly and technically a correct statement of the facts, yet the evidence tends to show that the appellee was struck only about 20 feet east of the crossing, and so near thereto as to have required a slackening of the speed of the car. The evidence tends to show that the boys had been instructed by the father of one of them to stand at the corner until he had finished lighting his lamp, and, while they may have moved a short distance east of

the corner, they were near enough thereto to demand of the appellant the exercise of the care required in propelling its cars across a street crossing.

Even, however, if the party injured was not sufficiently near the crossing to justify the application of the increased vigilance required of a street car company in approaching a crossing, yet there is evidence tending to show that the speed of the train was unreasonable and dangerous. Street cars propelled by electricity cannot be lawfully run at a rate of speed which is incompatible with the lawful and customary use of the highway by others. Here the appellee had as much right to be upon the street as the appellant. 2 Thomp. Neg. § 1395. A street railway company has no property interest in the street, and therefore no right to run its cars at a rate of speed which will interfere with the customary use of the street by others of the public with safety. Such cars can be more readily and quickly stopped than the train of an ordinary railroad. Where the motorman or gripman runs his car at such a rate of speed that he is prevented from keeping control of it, so as to stop it within a reasonable distance upon an appearance of danger to others, the rate of speed at which he propels the car is to be deemed unreasonable or dangerous. It has been held that, where an electric car was running at the rate of 10 or 11 miles an hour over a crossing in a much-frequented street, without giving any signal, there was such evidence of negligence as justified a submission of the case to a jury. 2 Thomp. Neg. §§ 1395-1397.

The evidence in the case tends to show that, when Frank Bonner had finished lighting the lamp and came down from the ladder, the appellee, with his face towards the track, stepped down from the curbing at the edge of the sidewalk to the street, and then turned around, and while backing towards the northwest, and towards the south track, he talked with the other boy, standing upon the sidewalk or curb with his oil can. While he was thus backing towards the track, the train was coming at an unusually high rate of speed. The boy Thomas Bonner says that the appellee had reached the south rail of the track, and had his foot over it, when he (the witness) discovered that the train was about to strike the appellee. Thomas Bonner then says that he hallooed to appellee to look out, and went forward to pull him away from the car; that the car was within 15 feet of the appellee before witness saw the car; that he did not see the car until it had advanced about 5 feet beyond the crossing. He also says that when he called to appellee to look out, and advanced towards him, appellee tried to cross the rail and come back, but was struck before he succeeded in doing so. The evidence also tends to show that when the car stopped it had probably passed the boy by about 75 feet. It is a question of fact for the jury whether the grip

man or motorman on such a car keeps such a lookout as the circumstances demand, or gives such warning of approach as is necessary when he discovers that a child is upon the car track or approaching it, and the circumstance that the car has run an unusual distance before it stops is some evidence of improper management. Roberts v. Railway Co. (Wash.) 63 Pac. 506, 54 L. R. A. 190. When a young child is discovered approaching the car track with the apparent intention of crossing in front of a moving car, or is discovered on the track, it is certainly the duty of the gripman or motorman to exercise a high degree of diligence in order to prevent injury to the child. 2 Thomp. Neg. § 1424; Railway Co. v. Mechler, 87 Tex. 628, 30 S. W. 899. A verdict in favor of the plaintiff will not be disturbed where it appears that a street car approaches a street crossing at a very fast rate of speed, without any alarm, while a boy is standing on the track in full view of the motorman, or standing in the center of the track, with his back towards the car. 2 Thomp. Neg. § 1425. In the case of Rack v. Railway Co., 173 Ill. 289, 50 N. E. 668, 44 L. R. A. 127, it appeared that the boy there injured was standing in the roadway, and not, as here, approaching the car, with his back towards it. It also appeared in the Rack Case that the gong was rung while the train was passing over the crossing. In that case there was no testimony tending to contradict the gripman in reference to the circumstances there referred to. In the case at bar, however, there was not only evidence tending to show that the appellee was approaching the car, and that, too, with his back turned towards it, but there was also evidence tending to show that no bell was rung, or other warning given to the appellee of the approach of the car. In these respects the Rack Case is distinguishable from the case at bar.

After Frank Bonner had lighted the lamp and descended by means of his ladder, he stood upon the sidewalk, talking with a man named Gillen. He and his son Frank Bonner and Gillen were witnesses of the accident, and testified to what they saw, in behalf of the appellee. The only witness on behalf of the appellant who saw the accident was the motorman, whose deposition was taken in a distant state, and read upon the trial. Appellant sought upon the trial to discredit the testimony of the appellee's witnesses by introducing evidence tending to show that such witnesses had made different statements in regard to the facts from those testified to upon the trial. It appears that a day or two after the accident the appellant sent parties to appellee's witnesses to interview them, and at a subsequent day procured the attendance of these witnesses at the office of appellant's attorney, and took down their statements. Upon the latter occasion it would appear that such statements were taken down, so far as they were taken

down at all, by a stenographer. But upon the occasion immediately following the acci dent no stenographer was present, but two representatives of the company were present; one of them asking questions in the presence of the other. The questioner made notes of the answers, and when he returned to his office he dictated these notes to a shorthand reporter, and he and his companion then signed the reporter's notes. The statements thus alleged to have been made by the plaintiff's witnesses were proven, and sought to be proven, upon the trial, as contradictory of their testimony. Whether or not the witnesses were contradicted in this way was a matter for the jury to determine. The jury were the judges of the credibility of the witnesses.

It is true that the witnesses introduced by the appellant contradicted the witnesses introduced by appellee. The evidence of appellant tended to show that the car was not proceeding at an unusual rate of speed, and that the gong was sounded and due warning given, and that the appellee attempted to run across the track as the train was approaching, with his face towards the track. Whether the witnesses of appellant were more worthy of credit than those of appellee was a matter for the jury to decide. So far as we are concerned, the judgments of the circuit and appellate courts are conclusive upon the questions of fact. If the jury believed that the car which injured appellee was proceeding across Wood street at its intersection with Thirty-Fifth street at an unreasonable and dangerous rate of speed, and without giving any signal or warning to those crossing the street at that point, and if the jury further believed that, under all the circumstances, the motorman saw, or ought to have seen, the appellee approaching the track, and, if he had kept a proper lookout, could have avoided striking him, then the verdict of the jury was correct. All that we decide upon this branch of the case is that there was testimony enough tending to show negligence on the part of the appellant company to justify the submission of the matter to the jury.

2. Appellant complains that the trial court erred in the giving and refusal of certain instructions. The second instruction given for the appellee is complained of by the appellant, and is as follows: "The court further instructs the jury that, if they believe from the evidence that the plaintiff at the time of the accident was a child between the age of five and six years, then he cannot, because of his tender years, be guilty of, or be charged with, carelessness or negligence in respect to the accident in this case, so as to relieve at all any want of due care on the part of the railroad company, so that, if the jury further believe from the evidence that the accident causing the injury to plaintiff was due to the want of due and ordinary care by the defendant railroad, then you must find a verdict for the plaintiff, and no want of care by the plaintiff will save the defendant