the record when the court was called upon to decide the applicability of this instruction to the case.

It is further insisted the same instruction is faulty in not limiting the "prima facie case" to fire occasioned by an engine "while upon or passing along any railroad in this state." That the engine which set the fire did pass along the defendant's railroad is undisputed. The court, in instructing the jury, was justifiable in assuming that fact.

The further point is made against the instruction that it permits a recovery without proof of the particular acts of alleged negligence. The statute upon which the action was based is a rule of evidence. Having made such allegations in their declaration as stated a cause of action, the plaintiffs had the right to invoke the statute as relieving them of the burden of proof after showing the fire was communicated from the defendant's locomotive, and rest their case without proof of the particular facts constituting the negligence. None of the objections to the tenth instruction are well taken.

Expert testimony was admitted, over the objection of the defendant, as to the value of the property destroyed. A witness named Dow stated what he observed of the ruins after the fire, and from that observation gave his opinion as to the value of certain farm machinery which had been so burned as to be worthless. It is insisted this testimony was incompetent. We do not think so. It may have been of but little weight, but that was for the jury. Another witness testified as to the depreciation in the value of buildings, generally, by age, and was then permitted to give his opinion as to the value of those destroyed, based upon the description of them given by the witness Glenny, who was acquainted with them, the witness giving the opinion never himself having seen them. The form in which the question was put to the witness as an expert was not strictly proper. The opinions of witnesses as to values may be based upon a hypothetical statement of what has been already proven in the case.-as to the quality, conditions, and situation of the property,-as well as upon their own actual observation. Moore v. Railway Co., 78 Wis. 120, 47 N. W. 273. Instead of asking the witness his opinion based upon the testimony already in, the question should have been framed hypothetically, so as to embrace such facts as the evidence was supposed to show. "Questions put to an expert on direct examination must be framed hypothetically, unless there is no conflict of evidence as to the facts or the witness is personally acquainted with them." Bradner, Ev. p. 537. It has been permitted in some courts to pursue the course taken in this case, but as we said in Pyle v. Pyle, 158 Ill. 289, 41 N. E. 999 (on page 300, 158 Ill., and page 1002, 41 N. E.), "the better and proper practice, however, is to put a question to the witness reciting the supposed facts hypothet

ically upon which the opinion of the expert is wanted." The error in this case was one of form, rather than of substance. The value of the buildings was shown by other testimony, and no evidence was introduced by the defense to controvert the values shown by the plaintiffs. We find no reversible error in the record, and the judgment of the appellate court will be affirmed. Judgment affirmed.

(175 III, 421)

SHERIDAN v. CITY OF CHICAGO. (Supreme Court of Illinois. Oct. 24, 1898.) SPECIAL TAXES-JUDGMENT-ERROR-REVIEW.

1. Where parties appealing from confirmation of a judgment against their property for delinquent special taxes agreed in open court to entry of an order setting aside a former confirmation, and to a submission of the controversy to the court, whereupon the assessment was reduced, and judgment of confirmation entered, they cannot assign as error that their property was not bound because of defects in procedure, whereby the assessment was made void.

2. The rule which prevents the courts from interfering with judgments after term does not apply to orders afterwards entered by agreement of parties.

Error to Cook county court; Frank Scales, Judge.

Proceeding by the city of Chicago against James W. Sheridan to enter a judgment for delinquent special taxes. From a judgment for applicant, Sheridan brings error. Affirmed.

George W. Wilbur, for plaintiff in error. Charles S. Thornton, Corp. Counsel, John A. May, and Stuart G. Shepard, for defendant in

error.

PHILLIPS, J. On April 11, 1892, the city council of the city of Chicago passed an ordinance providing that a connected system of sewers be constructed in eight streets in the ordinance named, and commissioners were appointed to estimate the cost of the improvement, who estimated the cost to be $38511.78. The ordinance for the improvement detailed the character and size of the sewers, and the grade lines thereof, and provided further: "One hundred and twelve manholes to be built upon said sewer at such points as may be directed, to be cylindrical in shape, and have an internal diameter of three feet, and resting on a foundation of three courses of sewer brick; the walls of said manholes to be eight inches thick, built of two courses of sewer brick laid edgewise, in perpendicular courses. Ninety-eight catch-basins shall be constructed, and connected and trapped with said sewer with nine-inch vitrified tile pipe, located at such points on the curb lines of said street as may be directed. Said catchbasins shall be seven feet two inches deep. to be four feet inside diameter on the bottom to a height of five feet two inches, and thence to narrow to three feet inside diameter at the

top. All brickwork to be laid in the best American hydraulic cement. Said work to be done under the superintendence of the department of public works." Section 3 provides that assessments shall be divided into and collected by installments, in accordance with the act of the general assembly of the state of Illinois, and that the amount of the first installment shall be 20 per cent. of the total assessment. On June 18, 1892, the city of Chicago presented to the county court its petition for the appointment of commissioners to make the assessment of the cost of this connected system of sewers, as provided for by the ordinance. The order appointing the commissioners to spread the assessment, by a clerical error directed and ordered the sewer on four of the streets to be constructed from West Twentieth street to West Thirty-First street, instead of from West Twenty-Sixth street to West Thirty-First street. The commissioners, however, as stated in the brief of plaintiff in error, "in the proceedings and assessment roll did not provide for an improvement commencing at West Twentieth street, but they followed the original petition and the ordinance which was made a part thereof."

It is objected that the affidavit as to mailing notices is insufficient. The affidavit commences as follows: "This affiant, Henry Esdohr, being first duly sworn, upon oath says that the affiant and Humphrey Moynihan and John O'Brien were heretofore appointed," etc. The affidavit is signed, however, by John O'Brien, another of the commissioners, and not the one who was sworn, as appears by the affidavit. The jurat is dated August 3, 1892, and shows the return day to be August 8, 1892. This being a direct proceeding, the notice is to be construed as a part of the process, and should be sufficient on its face to show that the statutory requirements were complied with. A process which does not show the time when it was served cannot be made the basis of a default at the return term.

The fourth point made by plaintiff in error is that the order of default and confirmation is insufficient and void. The insufficiency is alleged to be in that no property is described in the judgment order. A reading of the order of August 10, 1892, will fail to disclose any uncertainty about the description of the property included therein. Judgment was entered against all of the property included in the assessment roll, except against certain specific property, which was fully described in the order objected to. Subsequently all objections filed by objectors were overruled, and a judgment of confirmation entered, and the clerk was ordered to certify the same. Thereafter the default as to certain property owners was set aside, and the hearing was continued from time to time until January, 1896, when, as to certain property, the court reduced the assessment, and entered judgment of confirmation as to the residue. The

plaintiff in error brings this record, and assigns error to the action of the court in entertaining jurisdiction and entering judgment.

From the facts appearing in this record we do not deem it necessary to discuss the foregoing points raised by plaintiff in error. It appears that on January 18, 1897, plaintiff in error, with others, entered his motion to set aside the order of confirmation entered by the county court, and, as abstracted, the following judgment and order were entered: "On January 18, 1897, an order was entered on behalf of certain parties stating that said parties, by their attorney, severally consent and agree in open court that the judgment of confirmation heretofore entered herein against their property may be vacated and set aside and stand for naught; that a trial by jury may be waived, and that said cause may be submitted to the court for trial without the intervention of a jury; and it is ordered that judgment of confirmation heretofore entered against the several lots, pieces, or parcels of land hereinafter described be, and the same is hereby, vacated and set aside. And the court, being fully advised in the premises, finds that the contract for the improvement mentioned has been let, and that there is a difference between the contract price or cost of constructing said improvement and the assessment levied therefor of not less than 44.6 per cent.; and the court further finds that the first installment was in collection this year; that said first installment has either been paid, or judgment and order of sale entered against the lands upon which it remains unpaid, and this order shall not affect said first installment. It is therefore ordered that the said assessment be, and the same is hereby, reduced 44.6 per cent. as to the unpaid installments upon the lands described below, to wit [here follows description of property with amounts of assessment]; and that judgment of confirmation be, and is hereby, entered against each and all the lots, blocks, tracts, and parcels of land described above for the amount set opposite the same as reduced." The plaintiff in error, by this motion, appeared in court, and, so far as shown by the record, consented and agreed that the judgment of confirmation should be set aside, and waived a jury, and submitted to the court for trial the question of the confirmation of the assessment without in any manner, before or at the time presenting any objection to the proceedings or to entering judgment. The plaintiff in error cannot complain of any defect which might exist in these orders, which were entered pursuant to his request, and with his express consent, for there is no principle of law more familiar than that a party shall not be permitted to assign for error that which he has requested the court to do. Clemson v. Bank, 1 Scam. 45; Packet Co. v. Binninger, 70 Ill. 571; Steel Co. v. Martin, 115 Ill. 358, 3 N. E. 456; Washington v. Railway Co., 136 Ill. 49, 26 N. E. 653. "The appellant must be consistent, and,

if he asks the court below to make a specific ruling, or to proceed in a certain manner, he cannot complain in an appellate court that the ruling or action is erroneous. He has invited the error, must accept its results, and the appellate court will not reverse a judgment at his instance on account of it." 2 Enc. Pl. & Prac. 519 et seq., and cases cited. The rule which prevents the court from interfering with its judgments rendered at terms which have passed can have no application to orders or judgments entered by the express consent and agreement of all parties interested. The plaintiff in error cannot thus voluntarily enter his appearance, and request the court to act, without presenting any objection to the court, and without excepting to any action of the court, and then assign error, and have an appellate tribunal review such action. The judgment of the county court of Cook county is affirmed. Judgment affirmed.

1. An indictment charging accused with the larceny of a cape states with sufficient certainty the larceny of a shoulder wrap.

2. Under Cr. Code, c. 38, § 486, providing that user shall be prima facie evidence of the existence of a corporation, proof of the exercise of corporate powers is sufficient to support an allegation that a corporation was incorporated under the laws of the state.

3. A conversation between accused and one person, and a later conversation between accused and a third person who came into the room during the first conversation, are all one conversation, which may be proved if accused participated at any time.

Error to criminal court, Cook county; Arthur H. Chetlain, Judge.

Minnie Waller was convicted of larceny, and brings error. Affirmed.

Joseph B. David, for plaintiff in error. Edward C. Akin, Atty. Gen., Charles S. Deneen, State's Atty., and Haynie R. Pearson, Asst. State's Atty., for the People.

BOGGS, J. This is a writ of error brought to review the judgment of the criminal court of Cook county convicting the plaintiff in error of the crime of grand larceny, and adjudging she should be confined in the penitentiary. The description given in the indictment of the property alleged to have been stolen is "one cape, of the value," etc., the "personal goods," etc. A motion to quash the indictment on the ground the property alleged to have been stolen was not sufficiently described was overruled, and this ruling of the court is assigned as for error. The argument in support of the assignment is that the word "cape" is the name of more than one object, and nothing contained in the indictment indicates which of said objects the word was

intended to signify. In the general, popular, and usual acceptation, the word "cape" means either a garment or part of a garment used for covering the shoulders of the wearer, or a neck or narrow strip of land extending some distance into a body of water. The rule is, "The indictment must state with reasonable certainty what was stolen." 2 Bish. Cr. Proc. § 699. A natural formation of the earth-as a cape of land-cannot be the subject of larceny; hence it would be wholly unreasonable to say it was uncertain in which sense, in ordinary acceptation, the word "cape" was used. The word "cape" is sometimes employed as descriptive of a kind of wine made at the Cape of Good Hope, but in such instance it is not used as a noun. It is therefore clear it was not in that sense that it was used in the indictment. It is urged that the word "cape" means the coping of a wall, and also ears of corn broken off in threshing; but we find from the standard dictionaries and cyclopedias that no such meanings are given the word except in certain restricted localities, in the northern part of England. We are to accept the word in its plain, ordinary, and popular meaning in our country and among our people. We think the description of the property is set forth in the indictment with reasonable certainty.

The indictment charged that the cape was of the "personal goods and chattels of "The Fair,' a corporation organized and incorporat

ed under the laws of the state of Illinois." Proof of the actual exercise and enjoyment of corporate powers and functions was proven; but counsel for plaintiff in error contends that, as the indictment charged the corporation had been organized and incorporated under the laws of the state of Illinois, it became necessary for the prosecution to prove that the corporation had been organized and incorporated as alleged. It is provided in the Criminal Code (chapter 38, § 486) that, in all criminal prosecutions involving proof of the legal existence of a corporation, user shall be prima facie evidence of such existence. The legal existence of a corporation presupposes its organization and incorporation. Proof of user, therefore, sufficiently supported the allegation of the indictment, there being no countervailing proof. The complaint that the proof did not establish that the corporate name of the alleged corporation was "The Fair" is wholly groundless. The evidence was ample upon this point.

While the witness introduced to establish the value of the cape was permitted to give his opinion as to its value without being restricted to the value thereof on the market, further testimony given by him on his crossexamination developed that his estimate was, in fact, based upon the salable or market price and value of the garment.

It appeared from the evidence the plaintiff in error, while in the store of the corporation, was charged by one of the employés of The Fair with the theft of a cape which was

then in her possession, and which was seized by such employé, and taken to the room or office of the superintendent of the corporation. The superintendent was allowed to testify to a conversation which occurred in the office, in which the plaintiff in error participated, in the course of which she (the plaintiff in error) denied that she was guilty, and said she had the cape when she came into the store, and that at that time Officer Evans came into the office, and the witness (the superintendent) asked him if he knew or recognized the plaintiff in error, and that the officer replied: "Yes; it is the notorious shoplifter, Emma Weir." It appeared from the testimony of Evans that he came into the office while the conversation between the plaintiff in error, the employé, and the superintendent was in progress, and that he said to plaintiff in error, "Hello, Emma! stealing again?" and she replied, "I don't know," and that then it was that he said to the superintendent, "That is Emma Weir, the notorious shoplifter;" and the plaintiff in error did not say anything more. It was entirely competent to give in evidence a conversation so far as the plaintiff in error took part therein. The position of her counsel that the testimony complained of related to two distinct conversations, and that she did not participate in one of them, is not tenable. But, if it should be regarded that separate conversations occurred in the office, we find it clearly appeared from the evidence that the plaintiff in error participated in both. Moreover, the guilt of the plaintiff in error was established by overwhelming and practically undisputed testimony. The judgment is right, and is affirmed. Judgment affirmed.

1. Expert witnesses for defendant railroad company testified that the speed at which a train was running was not equal to the rate prohibited by ordinance, which was contradicted by plaintiff's witnesses, who were his fellow passengers, and also engaged in the same business. A general instruction stated, inter alia, that the jury, in determining the credibility of each witness, might take into consideration "his relationship to the parties in this suit." Held, that the instruction is not objectionable on the ground that it singles out and covertly attacks defendant's witnesses. who were its employés, since it applies as well to the possible relationship between plaintiff and his witnesses.

2. The relation of carrier and passenger still exists when a passenger is obliged to alight from a car to go to another car, to be carried by the carrier to his destination.

3. A stockman traveling with the consent of the railroad company on a freight train, in charge of stock carried by the company for him, is a passenger.

4. Where a train has reached a point where the passenger may lawfully leave it, and no direction is given him to alight on the side of the train where there is no danger, but he is permitted to alight on the side where there is danger, it is for the jury whether reasonable care for the safety of the passenger has been used by the railroad company.

5. A passenger who obeys the instructions of a conductor of a railroad train, on whose assurance he has a right to rely, cannot be charged with contributory negligence, where injured in attempting to follow out the instructions. 6. Plaintiff and other stockmen, who were riding in the caboose of a freight, were asked by the conductor if they did not desire to lunch at a place where the train had stopped, which question was a part of his duties. They answered in the affirmative, and were told to get out, and walk a block and a half, up to where the lunch counter was. The conductor and brakeman saw the stockmen alight on the east side of the train. The conductor knew a fast express was due on the east track, which was unknown to the stockmen, but did not warn them in any way of the danger. Plaintiff was caught in the four-foot space between the moving freight and the fast express, and was knocked down by the current of air or by the motion of the train, and fell under the express. Held, that a finding by the jury of negligence on the part of the railroad company was proper.

7. It was proper to refuse an instruction that "information," by those in charge of a freight, to a passenger of mature age, and accustomed to travel, that he might, or might more conveniently, alight from the car at a place other than the usual place of alighting from such train, does not require such passenger to take the risk of leaving the car at such place, and is not negligence on the part of the railroad company, since erroneous in assuming that the statement made to plaintiff and the other stockmen by the conductor was in the nature of information, instead of leaving it to the jury to determine whether such statement constituted an "invitation" to plaintiff to do what the conductor suggested.

8. It is not error to refuse to submit special interrogatories, which relate merely to evidentiary facts, on which the rights of the parties do not ultimately depend.

Appeal from appellate court, Third district. Action by Ferdinand Winters, Jr., against the Chicago & Alton Railroad Company. From a judgment of the appellate court (65 Ill. App. 435) affirming a judgment for plaintiff, defendant appeals. Affirmed.

This is an action on the case, brought by the appellee against the appellant company, to recover damages for a personal injury. The declaration consisted originally of six counts, but the first, second, fourth, and fifth counts were stricken out or withdrawn, and the third and sixth counts only were left standing. The defendant pleaded the general issue. The case was tried before the court and a jury, and resulted in verdict and judgment in behalf of the appellee (the plaintiff below). This judgment has been affirmed by the appellate court, and the present appeal is from such judgment of affirmance.

The third count of the declaration alleges that the appellee was lawfully, and by invitation of the appellant (the defendant below), on the grounds of appellant within the corporate limits of the city of Bloomington, at a point between Mason and Washington streets;

that an ordinance of said city prohibited the appellant from running its passenger trains at a greater rate of speed than ten miles per hour, and its freight trains at a greater rate of speed than six miles per hour, in said city, between said streets; that appellant's servants ran a certain passenger train on said railroad between said streets, in said city, on the night of December 12, 1893, at a greater rate of speed than was permitted by the ordinances of the city; and that the appellee, while on the grounds of appellant by its invitation, and while using due care for his own safety, was knocked down and injured, etc. The sixth count of the declaration alleges that the appellee was a passenger on appellant's railroad car, to be carried from Nilwood to Chicago; that it was the duty of appellant to safely convey and keep appellee from all unnecessary danger, and not to expose him to needless peril, while so being a passenger; that, while appellee was so a passenger at Bloomington, and on the grounds of appellant's railroad, appellant, by its agents, invited him to alight from said train of cars at a time and place of needless peril, appellant knowing, and appellee at the time not knowing, of the perils of the time and place; that appellee then and there alighted from said train on appellant's ground at the invitation and suggestion of appellant; and that upon so alighting at such place, and while in the exercise of due care to guard against injury, appellee then and there was thrown and caused to fall down by the motion of a certain rapidly moving train of the appellant, or by the swift currents of air set in motion by said train, and was thereby injured.

The facts developed by the testimony are substantially as follows: On December 12, 1893, appellee, who was a farmer, shipped from Nilwood, in Macoupin county, a car load of sheep over appellant's road to Chicago, and took passage on the same train, riding in the caboose, to accompany his sheep to Chicago. When appellee boarded this train, there were in the caboose two other parties accompanying their stock to Chicago, who had boarded the train at points further south than Nilwood. On the way from Nilwood to Bloomington, other cars of live stock were added to the train, and six other shippers of stock likewise took passage in the same caboose. When the train, which was a freight train, arrived at Bloomington, there were nine shippers of stock in the caboose, including the appellee. Appellee had made but two similar trips to Chicago. The train arrived at Bloomington after night, and stopped at the hour of 9:40 p. m. on the west track of the appellant, about a block and a half south of the switch yard of the appellant at Bloomington. There was another track upon the appellant's right of way, east of the track upon which the freight train stopped; and the space between the two tracks was about eight feet. The evidence shows that it was the custom of the railroad company, when a

freight train of this character arrived at Bloomington, to make up a new train to go on from Bloomington to Chicago. Upon the new train thus made up, another conductor than the one arriving on the train at Bloomington took charge from Bloomington to Chicago, and another caboose than the one arriving at Bloomington was attached to the train newly made up to go to Chicago. It was thus necessary for the appellee and the other stockmen with him to alight from the train on which they arrived in Bloomington, and go into the other caboose attached to the newly made up train. It was sometimes difficult for the stockmen to find the caboose attached to the new train, in order to enter. it, after the train was made up in the switch yard. Some of the witnesses say that it was oftentimes necessary for them to hunt for the caboose attached to the new train, in order to find it.

When the freight train thus reached a point on the west track at 9:40 o'clock at night, a block and a half south from the switch yards, the conductor and brakeman of the freight train were in the caboose with the stockmen, and asked them if any of them desired to get lunch. Several responded in the affirmative. The conductor then told them to get off at that point, and walk north a block and a half, to where the lunch counter was. He stated to them that the freight train would probably remain at that point for some time, and that, if they waited until the train reached the switch yards, it might move on before they would have time to get lunch. The freight train stopped on the west track, at the point indicated, to await a signal to pull up into the switch yard. The stockmen, including the appellee, then alighted from the caboose of the freight train in which they had been riding, and walked north, on the east side of the freight train, towards the switch yard. Just after they so began to walk northward, the freight train began to move north, going at first slowly, and then more rapidly. the appellee and the other stockmen were thus walking north, a fast passenger train, coming from the north and going south, passed down on the east track, so that the stockmen were thus caught between the two trains. The passenger train which thus passed to the south, on the east track, was due at Bloomington about 9:45 p. m., and seems to have been about on time on this evening. The testimony shows that the space between the two moving trains, the freight train moving north, and the passenger train moving south, was only about four feet. The night was cold, and the ground was frozen. Appel lee was walking in the rear of the other stockmen, and in some way, by the motion of the trains, or by the current of air created by their motion, he was knocked down, and one of his legs was so crushed by the passenger train that it had to be amputated.

While

Rinaker & Rinaker, for appellant. Anderson & Bell, for appellee.