[127 ILLINOIS, 9.]

NEGLIGENCE. — THE FACT THAT ONE PASSING FROM A SIDEWALK CROSSING in a city stops upon the track of a street railroad, without first looking to see whether a car is approaching or not, is not, as a matter of law, negligence, whether the cars accustomed to run on such track are horsecars or grip-cars. The question whether the sufferer was negligent must be determined by the jury in such case with regard to all the surrounding circumstances, and his conduct cannot be said, as a matter of law, either to be negligent or to be free from negligence. NEGLIGENCE IN RUNNING TRAINS IN OPPOSITE DIRECTIONS.—If car-tracks are in close proximity, to run a car or train of cars in one direction at rapid speed, and without signal or warning, over a sidewalk crossing, while another car or train bound in the opposite direction is discharging passengers at such crossing, and where the view of the approaching train is obstructed by the standing car from which the person injured has just alighted, this conduct fairly tends to prove culpable negligence on the part of the railway corporation, even though the rate of speed of the approaching train does not exceed that which is permitted by ordinance.

CONTRIBUTORY NEGLIGENCE ON THE PART OF THE PARENTS OF A CHILD . INJURED by a railway will not preclude a recovery for such injury, if the child himself was using all the care which the occasion required.

ACTION by Mary Robinson to recover from the Chicago City Railway Company for the death of a child of which she was administratrix. Judgment in favor of plaintiff in the trial court was affirmed by the appellate court.

Haynes and Dunne, for the appellant.

Smith and Helmer, for the appellee.

BAKER, J. In this case, appellee, as administratrix of her intestate, a boy some six years old, recovered judgment in the Cook circuit court for fifteen hundred dollars damages against appellant for wrongfully causing the death of such intestate, through the negligence of its servants. The judgment was affirmed in the appellate court for the first district.

Two grounds are urged in this court for the reversal of the judgment. One is, the refusal of the trial court, when the plaintiff below rested her case in chief, to instruct the jury to find for the defendant, because there was no evidence of negligence on the part of defendant, and no evidence of due care on the part of the plaintiff. We cannot accede to either of the propositions involved in the motion that was made by appellant. It is only when the conclusion of negligence necessarily results from the statement of fact that the court can be called upon to say to the jury that a fact establishes negligence, as a matter of law: Chicago etc. R. R. Co. v. O'Connor, 119 Ill. 586. The fact that a person passing over a sidewalk crossing in a city steps onto the track of a street railroad, whether the cars accustomed to run thereon are horse-cars or grip-cars, without first stopping and looking to see whether a car is approaching, is not, as matter of law, and without any regard to surrounding circumstances, negligence and a want of ordinary care. The question of negligence and a want of ordinary care, is in such cases, a question of fact for the determination of the jury, in the light of the attendant circumstances.

Where street-car tracks are in close proximity, to run a car or train of cars in one direction at rapid speed and without signal or warning over a sidewalk crossing, while a car or train bound in the opposite direction is discharging passengers at such crossing, and where, as in this case, the view of the approaching train is obstructed by the standing car from which the person injured has just alighted, is surely conduct which fairly tends to prove culpable negligence, even though. the rate of speed of such approaching train does not exceed that which is permitted by ordinance, and it cannot be said, as matter of law, that such conduct is not negligence. From the testimony for appellee contained in this record, we think it was not manifest error to deny the motion of appellant to take the case from the jury.

It is urged that the first instruction for appellee was erroneous, in that it contained no reference to the element of con

tributory negligence on the part of the mother of the deceased child. The theory of the instruction was, that the child himself was in the exercise of ordinary and reasonable care at the time he was killed. Several of the instructions given at the instance of appellant were predicated upon the same theory of fact that lies at the foundation of this instruction in question, —i. e., that the deceased was capable of exercising ordinary care and prudence, and said instructions stated fully the duty thereby incumbent upon deceased in that regard. The jury, in returning a verdict for appellee, under the instructions of the court, must necessarily have found that the child was in the exercise of ordinary care and prudence. In such state of the case,—and it is the case stated hypothetically in the instruction,—it would be a matter of no moment, in respect to the liability of appellant, what degree of care and vigilance the mother was exercising for the safety of her child, since the child himself was using all the care which the occasion required. In a case where the conduct of an infant would not be negligence in an adult, the question of imputable negligence is immaterial: Cummings v. Brooklyn City R'y Co., 104 N. Y. 669. The view that the minor did not use and was incapable of exercising care, by reason of his tender years and immature judgment, and that in the event the jury so found, the doctrine of imputable negligence, on account of the neglect of the mother, was applicable to the case, was fully given to the jury in instructions tendered by appellant. Appellee made no claim at the trial that the age of the deceased would excuse in him conduct which would be negligence in a person of mature judgment; and as the case went to the jury upon the instructions, the issue was conceded to appellant, without the jury found, from the evidence, that the child was in the exercise of ordinary care at the time he was killed. We think the instruction complained of was not erroneous. The judgment of the appellate court is affirmed.

NEGLIGENCE, WHEN A QUESTION OF FACT FOR THE JURY, and when of law for the court: East Line etc. R'y Co. v. Scott, 71 Tex. 703; 10 Am. St. Rep. 804, and note. Where plaintiff's evidence tended to show that the grating, which hung on hinges, and was thrown back against the building when coal was being delivered, when so thrown back was dangerous, and liable to inflict injury upon those handling the coal, unless it was securely fastened, and that the appliances furnished by the city for that purpose were wholly inadequate, the question as to the negligence of the city was one for the jury: Galvin v. Mayor etc. of New York City, 112 N. Y. 223. Compare Geitz v. Milwaukee etc. R'y Co., 72 Wis. 307, where the contributory negligence of

the plaintiff was held to be a question for the jury. But in an action for negligence, when the question arises whether the act complained of was the proximate or the remote cause of the injury, if the facts are undisputed, the question is one of law for the court; otherwise, it is one of fact for the jury: West Mahanoy Township v. Watson, 116 Pa. St. 344; 2 Am. St. Rep. 604. CONTRIBUTORY NEGLIGENCE PARENT AND CHILD. It is not negligence, as a matter of law, for parents to let a bright four-and-a-half-years-old boy, living in a large city, with no other place of amusements, to go out into the streets to play, under proper instructions and directions, but whether they were guilty of negligence, under the particular circumstances, is a question of fact for the jury: Birkett v. Knickerbocker Ice Co., 110 N. Y. 504. But a father knowingly permitting his child seven years old to go alone upon a railroad track to pick up coal, where trains frequently pass, is guilty of culpable negligence: Pratt Coal and Iron Co. v. Brawley, 83 Ala. 371; 3 Am. St. Rep. 751. Compare Bliss v. Inhabitants of South Hadley, 145 Mass. 91; 1 Am. St. Rep. 441, and note 442.

CONTRIBUTORY NEGLIGENCE ON THE PART OF THE PARENT, WHETHE IMPUTED TO THE CHILD: See note to Pratt Coal and Iron Co. v. Brawley, 3 Am. St. Rep. 754.

HORSE AND DUMMY RAILROAD Co. v. DONOGHUE.

[127 ILLINOI8, 27.1

ASSESSMENT. -COURT OF EQUITY CANNOT REVIEW the action of an assessor or board of equalization in making an assessment, unless it can be shown that the assessment was fraudulently made, or that the property assessed was not liable to taxation, or that the legislature has, in authorizing the tax, disregarded or transcended the principles of equality, or that a tax has been levied when not authorized by law.

AN ASSESSMENT IS NOT SHOWN TO BE FRAUDULENT by proving that the committee of assessment promised an attorney, who appeared before them and made a statement with respect to the property to be assessed, that if they were not satisfied with his statement that they would notify him if they intended to make any assessment, and that they subsequently did make such assessment without complying with their promise.

BILL in equity against a tax collector to enjoin the collection of a tax. Decree for the defendant.

Bull and Strawn, for the appellant.

Maloney and Stead, for the appellee.

By COURT. This was a bill in equity, brought by the La Salle and Peru Horse and Dummy Railroad Company against the collector of taxes of the town of La Salle, in La Salle County, to enjoin the collection of a tax assessed by the state board of equalization on the capital stock of complainant for the year 1884. The complainant returned its capital stock

as being of no value, but the state board assessed the capital stock at five thousand dollars.

It is claimed that the capital stock was of no value; but if that be true, and the state board committed an error of judgment in making the assessment, that affords no ground for relief in a court of equity. When the power has been conferred upon a person or a board to make an assessment, and in the exercise of that power a greater value has been placed on certain property than should be placed upon it, a court of equity has no power to review the action of the assessor, and correct an error of that character. The rule well established is, that the action of the assessor is final, unless it can be shown that the assessment was fraudulently made, or that the property assessed was not liable to taxation, or the legislature has, in authorizing the tax, disregarded or transcended the principles of equality, or where a tax has been levied when not authorized by law: Republic Life Ins. Co. v. Pollak, 75 Ill. 294. The facts presented by this record do not, in our opinion, bring the case within any of the exceptions stated above.

As bearing upon the question of fraud, it was proven on the hearing that complainant sent an attorney to Springfield while the state board was in session, who appeared before the committee on the assessment of capital stock of corporations, and stated to the committee that the object for which the enterprise had been incorporated had proven an entire failure; that the capital stock was of no value, and the debts of no value, except to the extent of the tangible property, which had already been assessed at its full market value. The attorney also stated that if the committee was not satisfied with the statement made, he desired a committee to be sent to La Salle for the purpose of making an examination of the affairs of complainant, and an offer was made to defray the expenses of the committee, should it go and make the examination to ascertain whether the returns complainant had made were true. The committee promised the attorney that they would notify him if they were not satisfied with his statement, -that they would notify him if they intended to make any assessment. of the capital stock of the company. The attorney, after this interview, returned home, but received no communication from the committee in regard to the assessment. Doubtless, the committee of the board before whom the attorney of the company appeared did wrong in making a promise which was not fulfilled or observed in relation to the assessment, but we