have changed the result. Nothing more need be said on this phase of the case than to refer to what was said in the former opinion. (148 Ill. on pp. 44, 45.)

It is also insisted that the trial court erred in refusing to allow two physicians, called by appellants, to answer certain hypothetical questions propounded to them, but we think no error was committed in this regard.

It is further contended that the court erred in giving to the jury the following instruction:

4. "The court instructs the jury that the law presumes, and it is your duty to presume, that every man who has arrived at the years of discretion is of sound mind and memory, and capable of transacting ordinary business, and capable of disposing of his property by will or otherwise, until the contrary is shown; and the court instructs you that, in the first instance, it is your duty to hold that David Craig, at the time he executed the will offered in evidence, was of sound mind and memory, and to so hold until you believe, by the preponderance of the evidence, that he was otherwise."

The court had already instructed the jury that it was incumbent on the proponents of the will to make out a prima facie case, in the first instance, by proper proof of the due execution of the will by the testator, and of his mental capacity, as required by the statute, and there was no question in the case that such proof was not made. The burden of proof was then upon the contestants to prove the allegations of their bill, by a preponderance of the evidence, that the testator was mentally incompetent, and the proponents were entitled to the legal presumption of sanity, as stated in the instruction. As said in Carpenter v. Calvert, 83 Ill. 62, "in weighing the conflicting proofs the party supporting the will is entitled to the benefit of this presumption." (See, also, Wilbur v. Wilbur, 129 Ill. 392, where the same question was considered.) The instruction was not erroneous.

Other criticisms are made upon other instructions, but we do not find that any error was committed, as contended by counsel. The jury were fully and fairly instructed by the court as to the law applicable to the facts adduced on both sides of the controversy, and no sufficient reason is shown why the decree should not be affirmed. Decree affirmed.

162 214 74a 51

ROBERT A. LOMAX et al.

v.

LUTHER C. SHINN et al.

Filed at Ottawa June 13, 1896.

This case is controlled by Lomax v. Shinn, (ante, p. 124,) and on the authority of that case the decree is affirmed.

APPEAL from the Circuit Court of Henderson county; the Hon. JOHN J. GLENN, Judge, presiding.

SHARP & BERRY BROS., and O'HARRA, SCOFIELD & HARTZELL, for appellants.

BASSETT & BASSETT, for appellees.

Mr. JUSTICE WILKIN delivered the opinion of the court:

The questions in this case are, in the main, the same as in Lomax v. Shinn, (ante, p. 124), involving the construction of the last will of Thomas B. Carroll, deceased. For the reasons stated in the opinion in that case the decree of the circuit court must be affirmed.

In the present case the point is made, that even though the wife, Sarah Carroll, did not obtain a fee simple title under the will of her husband, she was given a power of disposition over the lands for the payment of the debts and obligations of her husband, and that therefore her deed to a portion of the premises conveyed the absolute

No

title thereto. This position finds no support in the will itself nor in the testimony found in this record. power to sell any part of the land for the payment of debts is given in the will, nor does it appear from the evidence that it was necessary to sell lands for that purpose.

The testator clearly expressed the intention that his personal estate should be devoted to the payment of all his debts and obligations. He stated that it would be more than sufficient for that purpose, and there is nothing whatever in this record to show the contrary. The decree of the circuit court will be affirmed.

1. APPEALS AND ERRORS-findings of fact by Appellate Court are conclusive. The finding of facts by the Appellate Court different from the trial court, on which is based its judgment of reversal without remanding, is final and conclusive upon the Supreme Court.

2. SAME-findings of Appellate Court construed in connection with the pleadings. A finding of facts by the Appellate Court is to be construed and understood in connection with the pleadings in the case, and no particular form of expression is necessary.

3. FELLOW-SERVANTS—construction of Appellate Court's finding of facts concerning. A recital by the Appellate Court that the death sued for was caused by the negligence of an engineer running another section of the same train on which deceased worked as fireman; that the relation between the two men "was such as to promote caution for the safety of each other;" that they "were in the same general grade of service and the same line of employment;" that their duty "was to be on constant guard not to injure each other;" that the injury "was the result of a hazard of the service," and that there was "no negligence shown in the system or plan under which the trains were operated,” is a finding that the men were fellow-servants.

Terre Haute and Ind. R. R. Co. v. Leeper, 60 Ill. App. 194, affirmed.

70a 335

162 215

74a 169

162 215 176 428

215

162 e208 $208

WRIT OF ERROR to the Appellate Court for the Fourth District;-heard in that court on appeal from the City Court of East St. Louis; the Hon. BENJAMIN H. CANBY, Judge, presiding.

JESSE M. FREELS, and WISE & MCNULTY, for plaintiff in error:

The employee is not bound to anticipate, nor does he assume, the risk from extraordinary dangers, and he is not bound, as matter of law, exactly to know and appreciate the risk of the work in which he is engaged. Buswell on Personal Injuries, 340.

When the Appellate Court finds the facts different from the trial court, the facts recited must include every material issue submitted to the trial court, to authorize the Appellate Court to render final judgment different from the one below. Senger v. Town of Harvard, 147 Ill. 308; Insurance Co. v. Scammon, 123 id. 602; Neer v. Railroad Co. 138 id. 32; Hawk v. Railroad Co. 138 id. 40.

If the hazard was not a usual hazard, or was not known or understood by deceased, he did not assume it, and the employer cannot escape liability. Bailey on Master's Liability, chap. 9, p. 172, and p. 185.

The burden of proving that an injured servant had knowledge of an obstruction or defect before an accident is on the employer. 14 Am. & Eng. Ency. of Law, 844.

The men were not fellow-servants. They had no connection one with the other, were not working together, were not associated together in the performance of their duties, their employment did not require co-operation and had not brought them together or into such relations that they could exercise an influence upon each other promotive of proper caution, without which they were not fellow-servants. Railroad Co. v. Hawthorn, 147 Ill. 230; Railroad Co. v. O'Brien, 155 id. 631; Railroad Co. v. Moranda, 93 id. 315; Railroad Co. v. Kelly, 127 id. 643; Railroad Co. v. Hoyt, 122 id. 374; Railroad Co. v. Moranda, 108 id. 582; Rail

road Co. v. Massey, 152 id. 144; Railroad Co. v. Dwyer, 57 Ill. App. 441.

This different department distinction has been called "the doctrine of Illinois." McKinney on Fellow-servants, chap. 5, p. 168.

The court does not find deceased and Burgess were "directly co-operating with each other," though it does find they were in the same line of employment. This court, in Chicago and Alton Railroad Co. v. O'Brien, 155 Ill. 633, has almost in express terms held the finding of facts in this case insufficient to bring the deceased and Burgess within the rule making them fellow-servants.

TURNER & HOLDER, and T. J. GOLDEN, for defendant in error:

Where no question of law is preserved the judgment of the Appellate Court is final. Bank v. Cunniff, 151 Ill. 329.

Proof that Leeper was injured in consequence of the negligent acts of servants of the railroad company is not sufficient. The evidence for the plaintiff should further show that the relation of fellow-servants did not exist. Joliet Steel Co. v. Shields, 134 Ill. 209.

Mr. JUSTICE WILKIN delivered the opinion of the court:

On February 25, 1893, a freight train was run by defendant in error on its line from Terre Haute to St. Louis in three sections, called "29," "29 extra" and "29 second extra." They were run on the schedule time of 29-a regular train. Each had a conductor, two brakemen and an engineer and fireman. They ran five minutes apart, and were ordered to go on a side-track at Montrose station, so as to allow an east-bound freight train to pass. On reaching that station the first two sections obeyed the order and were standing on the side-track, the engine. of 29 extra fifteen or twenty feet from the caboose of 29, when 29 second extra, one Burgess being the engineer, ran into the switch, striking the rear end of this middle