are of the opinion, therefore, that the plaintiff in error was at the time of the injury a passenger, to whom defendants in error owed the highest degree of care, and that under the first and second counts of the declaration and the circumstances in this case a prima facie case of negligence was made out under the doctrine of res ipsa loquitur. There was no explanation of why the injury occurred. It follows that there was no evidence on the part of the defendants in error to overcome this presumption, and the jury were therefore justified in returning a verdict finding defendants in error guilty of negligence.

Defendants in error also complain of the admission of testimony offered by plaintiff in error concerning the danger of a certain operation, upon the ground that such operation was not contemplated, urging that under the rule recognized in this State the dangers of an operation not contemplated are not elements of damages. We are of the opinion, however, that in view of the fact that the permanency of the plaintiff's injury is not disputed the testimony could only affect the amount of the verdict, and that under the circumstances of this case the error complained of should not, of itself, have reversed the judgment.

It is also urged by defendants in error that even though the judgment of the Appellate Court be reversed, the cause should be remanded for a new trial under the Practice act. Under the views of this case as here expressed, however, the contention of the defendants in error is not applicable, as the judgment of the trial court must be affirmed.

Objections are also urged as to instructions given to the jury, but these objections appear to be based principally upon the theory that plaintiff in error was not a passenger. Under the rule as stated here the instructions are not open to this objection.

The Appellate Court erred in holding that the doctrine of res ipsa loquitur does not apply and that plaintiff in error was not a passenger upon defendants in error's railway.

The judgment of the Appellate Court will therefore be reversed and the judgment of the circuit court of Cook county affirmed.

Judgment of Appellate Court reversed.

Judgment of circuit court affirmed.

CARTWRIGHT, J., and DUNN, C. J., dissenting:

We do not agree with the conclusion that the plaintiff, as a matter of law, was a passenger while walking on the public street. The rule of law as to what will constitute the relation of passenger and carrier has been firmly established by text books and decisions, which were carefully reviewed and considered in the case of Chicago and Eastern Illinois Railroad Co. v. Jennings, 190 Ill. 478. Upon such review and consideration it was said to be uniformly held that the condition must be such that the passenger is under the care of the carrier and must be at some place under the control of the carrier provided for passengers, so that it may exercise the high degree of care exacted from it. The plaintiff having safely alighted from the defendants' car started to the place where he expected to take another car, and while walking on the street was not under the care of the defendants nor on any place provided for passengers or using any of the facilities furnished for passengers but was exercising his right as one of the general public by crossing the street, as he lawfully might. In the Jennings case the doctrine of the Massachusetts court, which is now abandoned, was indorsed and adopted. This court has never decided that the relation of carrier and passenger existed under the facts of this case. In Chicago and Alton Railroad Co. v. Winters, 175 Ill. 293, the plaintiff was accompanying his car-load of sheep to Chicago and at Bloomington the car was placed in another train being made up for Chicago. The plaintiff was walking on the east side of the freight train toward the switch yards on the grounds of the railroad company, intending to continue his journey in the caboose of the new train. There is no resemblance be

tween this case and that of North Chicago Street Railroad Co. v. Kaspers, 186 Ill. 246, except that the plaintiff had a transfer ticket. That ticket entitled him to ride on the cable-car line to his destination, and he had got on the step at the front end of the car and was stepping up on the front platform when the speed of the train was increased and he fell off and suffered the injury for which he sued. In Chicago City Railway Co. v. Carroll, 206 Ill. 318, a trolley pole on the Wentworth avenue car, from which the plaintiff had alighted or was alighting, fell from that car and struck him on the head. He had not got away in safety from the car as the plaintiff had in this case, in which the plaintiff was not within the care or control of the defendant or on a place provided for passengers and therefore was not a passenger. Illinois Central Railroad Co. v. O'Keefe, 168 Ill. 115.

Upon the trial of an issue of fact the plaintiff obtained a verdict and judgment for $5500, and the defendants appealed to the Appellate Court, which held that the plaintiff was not a passenger; that the doctrine of res ipsa loquitur was not applicable to the pleadings in the case, and that the trial court committed errors of law as to both those questions. For such errors the judgment was reversed and the cause remanded to the circuit court for a new trial. The plaintiff then stated that he had relied upon the doctrine of res ipsa loquitur and would be unable to produce further evidence of the special negligence upon another trial, and moved the court to reverse the cause without remanding, which was done. If the Appellate Court was wrong both upon the question whether the plaintiff was a passenger and also whether the doctrine of res ipsa loquitur applied, that fact does not justify an affirmance of the judgment of the trial court. If plaintiff was a passenger, that fact would not entitle him to a verdict for every injury sustained but would only affect the degree of care exacted by law from the defendants. The doctrine of res ipsa loquitur is, that

when a thing which has caused an injury is shown to be under the management of the party charged with negligence, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, the accident itself affords reasonable evidence, in the absence of an explanation of the party charged, that it arose from the want of proper care. It is but a rule of evidence, under which a charge of negligence is established prima facie by proof of facts within the rule, and which will justify a verdict unless the prima facie case is met by proof showing that the carrier was not at fault. (Chicago Union Traction Co. v. Giese, 229 Ill. 260.) On the trial the defendants introduced evidence that the switch which carried the rear trucks around to the west was in proper condition; that there had never been any trouble with it and that an examination immediately after the accident showed nothing the matter with it. The fact that the front trucks passed over the switch in the usual way tended to prove that the rear trucks swinging around was caused by some condition which the defendants were not bound to anticipate. The defendants also offered evidence that the running apparatus and equipment of the car were all in good condition and not defective and had been running since 5:30 that morning without any indication of anything wrong. If the Appellate Court was right in holding that the trial court misapplied the law it was the duty of the Appellate Court to remand the cause for another trial, at which such errors could be corrected. The plaintiff could not deprive the defendants of the right to present on another trial any evidence they might have to relieve themselves from the charge of negligence, by stating to the Appellate Court that he would be unable to produce further evidence of special negligence upon such trial. This court cannot decide questions of fact in controversy, and on a review of the judgment of the Appellate Court has merely held that that court was wrong in its rulings on questions of law.

(No. 12600.-Judgment affirmed.)

THE PEOPLE ex rel. Rufus M. Potts et al. Defendants in Error, vs. THE CONTINENTAL BENEFICIAL ASSOCIATION et al. Plaintiffs in Error.

Opinion filed June 18, 1919-Rehearing denied October 9, 1919.

1. STATUTES-When proviso may be given effect as an independent enactment. While it is a general rule of statutory construction that the office of a proviso is not to enlarge but to limit and qualify what is affirmed in the body of the act preceding it, yet where it is apparent from the entire act that the proviso was intended as an independent provision it will be given such effect without reference to the limitations of the preceding enactment.

2. BENEFIT SOCIETIES-when receiver may be appointed to protect assets of foreign corporation. As the business of beneficial insurance societies is affected with a public interest their assets and property are regarded as in the nature of trust funds, and the power to appoint a receiver inheres in courts of equity to protect the property of a foreign corporation of that character within their jurisdiction from misuse, misapplication or removal from the State when necessary to secure rights and prevent a failure of justice, although the courts in the home State of the corporation have already placed its affairs in the hands of a receiver.

3. SAME-court appointing receiver of property of foreign corporation may retain jurisdiction to determine rights of individual creditors. Where a court of equity appoints a receiver to collect the assets of a foreign benefit association which has become insolvent, it may retain jurisdiction of the case for determination of the rights of individual creditors when the assets are collected and ready for distribution.

WRIT OF ERROR to the Second Branch Appellate Court for the First District;-heard in that court on appeal from the Superior Court of Cook county; the Hon. AUGUSTUS A. PARTLOW, Judge, presiding.

DAVID K. TONE, for plaintiffs in error.

EDWARD J. BRUNDAGE, Attorney General, RYAN, CONDON & LIVINGSTON, and CHURCH, SHEPARD & DAY, (IRVIN I. LIVINGSTON, and CLYDE L. DAY, of counsel,) for defendants in error.