i [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1193-1211, 1213-1215; Dec. Dig. § 351.*] The evidence shows that it was the custom | neous in not covering the care of the deceased in this yard for the switchman to ride be- in going into the dangerous place, but only after he had gone there. tween the engine and car, as deceased did, when making a switch of this kind, but 1 cannot concur in the conclusion that this custom necessarily existed irrespective of any kind of coupler on the engine. I find no evidence in the record in conflict with the testimony of the two witnesses in question that there were couplers in general use which were so constructed that they could be uncoupled in such a switching movement without the necessity of men going between the engine and car. Neither do I agree with that part of the opinion that states, even though the failure to comply with the law as to the coupler in question required deceased to ride upon the running board of the locomotive, such failure to comply with the law was not the proximate cause of the injury. (259 Ill. 476) BALE v. CHICAGO JUNCTION RY. CO. (Supreme Court of Illinois. June 18, 1913. Rehearing Denied Oct. 15, 1913.) 1. TRIAL (§ 141*) QUESTIONS OF LAW OR FACT-UNCONTROVERTED EVIDENCE. The jury cannot rightfully reject uncontradicted and unimpeached testimony, and hence the credibility of witnesses so testifying is not a question for the jury. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 336; Dec. Dig. § 141.*] 2. RAILROADS (§ 333*)-ACCIDENTS IN CROSSING CONTRIBUTORY NEGLIGENCE. Where deceased expected a freight train to clear a crossing before a passenger train reached it, and voluntarily took his chance of being able to cross over behind the freight train before the passenger train arrived, he was guilty of such contributory negligence as to bar recovery for his death. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1080-1083; Dec. Dig. § 333.*] 3. TRIAL (§ 133*) - CONDUCT OF COUNSEL APPEALS OF SYMPATHY. Counsel for plaintiff, in an action against a railroad for the death of his intestate, stated that, if the defendant railroad was not liable, the jury would not be trying the case, that the trial judge would have thrown it out of court, that deceased was a working man, and that the statutory recovery of $10,000 was not much for a man's life suddenly hurled into eternity, to which the defendant's several objections were sustained by the court. Held, the deliberate purpose to arouse sympathy and excite prejudice was not defeated by the sustaining of one objection or the withdrawal of one remark, to be followed by others of like character, and that such remarks were ground for new trial. [Ed. Note.-For other cases, see Trial, Cent. Dig. & 316; Dec. Dig. § 133.*] 4. RAILROADS (§ 351*)-CROSSING ACCIDENTINSTRUCTIONS. In an action for the death of one killed at a crossing, where the declaration charged that the defendant ran over deceased, who was then and there exercising reasonable care for his own safety, an instruction that, if plaintiff established his case, he might recover was erro Error to Appellate Court, First District, on Appeal from Superior Court, Cook County: Farlin Q. Ball, Judge. Action by Henry B. Bale, administrator of James Dunworth, deceased, against the Chicago Junction Railway Company. From a judgment of the Appellate Court, affirming a judgment for plaintiff, defendant brings writ of error. Reversed and remanded. Winston, Payne, Strawn & Shaw, of Chicago (John Barton Payne, John D. Black, and John C. Slade, all of Chicago, of counsel), for plaintiff in error. I. W. Baker, of Waterloo, Iowa, and C. E. Heckler, of Chicago, for defendant in error. DUNN, J. The defendant in error recovered a judgment against the plaintiff in error for the death of his intestate, James Dunworth. The Appellate Court affirmed the judgment and its record is now before us for review. A reversal is asked because the deceased was guilty of contributory negligence, without which the accident would not have happened, the plaintiff's counsel made improper statements in his argument, and the court gave an erroneous instruction. The accident happened about 2 o'clock of a bright, clear day in February, at the crossing of Wallace street, running north and south, and the railroad tracks, running east and west and occupying the space which would have been Fortieth street if it had not been so occupied. The plaintiff in error had five tracks there, over which were operated the trains of a number of railroads, perhaps ten altogether, engaged in hauling freight to and from the Union Stock Yards. The Lake Shore & Michigan Southern Railway Company also operated suburban passenger trains over these tracks. The crossing was at grade but the railroad tracks were being elevated east of the street; the grade beginning about the east side of the street and rising to a point from 250 to 500 feet east of the street and then falling to grade at a point about 1,000 feet east of Wallace street. The third of the tracks (counting from the north) crossing Wallace street was the west-bound main track; the fourth the east-bound main track. Just before the accident an Illinois Central freight train going east on the eastbound main track had broken in two about seven car lengths from the rear, leaving four or five cars west of Wallace street. The crossing was blocked for about ten minutes, when the two parts of the train were coupled together and the train started east. Mr. Dunworth and his wife came from the north, south on Wallace street, crossed the first three tracks, and were standing between the east-bound and west-bound main tracks, waiting for the moving freight train to clear the crossing so that they might proceed, when a Lake Shore & Michigan Southern suburban train came from the east on the west-bound track. The space between the north rail of the east-bound track and the south rail of the west-bound track was only eight feet, which was reduced by the overhang of the cars on either track, and Mr. Dunworth, occupying this narrow space between the two moving trains, was thrown beneath the suburban train and killed. The three counts in the declaration on which the trial was had charged general negligence in the operation of rolling stock at the crossing, failure to guard the crossing, and failure to maintain a flagman, as required by an ordinance of the city. The negligence of the plaintiff in error is not contested here, but it is insisted that a peremptory instruction should have been given to find for the defendant because of the contributory negligence of the deceased. [1] The only witnesses who saw the deceased at the time of the accident were his wife and two laborers in the employ of the railroad company. These two men were working on the track at the northeast corner of the intersection when Mr. and Mrs. Dunworth came south on the east side of the street. Before going upon the tracks they crossed over to the west side of the street and then walked over toward the moving freight train. As Mr. Dunworth started across, or while he was upon the tracks, the men called to him and warned him of the passenger train, which was then in sight coming toward him. He looked toward the train, waved his hand to the men, called out to them, and went on. The testimony of these witnesses is not contradicted. They were foreigners, unable to speak or understand English, and gave their testimony through an interpreter. It is argued for the defendant in error that the credibility of their testimony was a question for the jury. The jury could not, however, rightfully reject their uncontradicted and unimpeached testimony. Mrs. Dunworth testified that she did not see the train until it was right beside her. She says that when they went upon the crossing they looked to see if there was any train coming, and there was none coming at that moment. It is undisputed that the suburban train could have been seen for a distance of 250 feet and in time to have given ample opportunity to get out of its way, even without the warning of the track laborers. It is argued that the deceased had a right to rely upon the observance of the duty imposed upon the plaintiff in error by the ordinance to have a flagman and to give warning. A flagman could have given no more warning than deceased already had. ́ [2] It is manifest that the deceased expected the freight train to clear the crossing be he voluntarily took his chance of being able to cross over behind the freight train ahead of the passenger train. In so doing he was guilty of such contributory negligence as to bar any recovery by his administrator. The court should have directed a verdict for the defendant. [3] In the course of the closing argument counsel for the defendant in error stated that there was here "the price of $10,000 for a man's life suddenly hurled into eternity"; that if the company was not liable the "jury would not be sitting here trying the case; his honor would have thrown the case out of court;" that if it was not liable "that would have been a question of law for the court, and the court would have told the jury that there was no question of fact"; that he was not going to offer many instructions; that the coroner's inquest and the testimony were not before the jury; that the defendant's counsel objected to its coming in, and that the plaintiff's counsel had no objection to its all coming in; that the deceased was a working man, earning about $600 a year, and the statute provided for the recovery of $10,000 for death; that counsel did not think "$10,000 very much for a man's life suddenly hurled into eternity"; that "if there was $10,000 heaped here on the floor in gold or in shining silver; that if that man (this poor widow's husband) was placed by the side of that gold, alive and in good health, as he was, that poor woman would quickly turn her back upon the gold and silver to the breast-" All these statements were severally objected to and the objections were sustained by the court. The address was an impassioned appeal to the emotions of the jury, persisted in after repeated objections sustained by the court. Its deliberate purpose was to arouse sympathy and excite prejudice, and this purpose was not defeated by the sustaining of an objection or the withdrawal of one remark to be immediately followed by another of like character. This kind of argument cannot be justified, and if willfully persisted in will justify the reversal of a judgment, even though the court has sustained objections to it. It is, of itself, sufficient reason for granting a new trial. [4] The following instruction was given for the defendant in error: "The court instructs the jury that if you believe, from a preponderance of the evidence, that the plaintiff has established his case, as alleged in the first, second, or fourth counts of his declaration, or either of them, then you should find the defendant guilty and assess the plaintiff's damages at such sum as you believe, from the evidence and under the instructions of the court, he is entitled to recover." The first count of the declaration charged that the defendant propelled certain of its rolling stock upon and over the person of the deceased, "who was then and there pres lace street and in the exercise of reasonable their lack of knowledge of the English lancare for his own safety." The averment of guage, it is somewhat difficult to understand reasonable care in this count was limited to how they could be certain that they gave an the time when the deceased was in the place effective warning to the deceased. The wife where he was struck by the train, while the of the deceased contradicts their testimony contention of the plaintiff in error was that upon this point. Contributory negligence is he was guilty of negligence in placing him- ordinarily a question of fact for the jury, self in that position when he saw, or by the and only becomes one of law when the unexercise of reasonable care could have seen, disputed evidence establishes that the accithe approaching train and avoided placing dent resulted from the negligence of the inhimself in a position of danger. The in- jured party. The in- jured party. If there be any difference of struction did not cover the care of the de- opinion on the question, so that reasonable ceased in going into the dangerous place, minds will not arrive at the same conclusion, but only his care after he had gone there, then it is a question of fact for the jury. and was therefore erroneous. Krieger v. Chicago City Railway Co. v. Nelson, 215 Ill. Aurora, Elgin & Chicago Railroad Co., 242 436, 74 N. E. 458; Chicago & Joliet Electric Ill. 544, 90 N. E. 266. Railway Co. v. Wanic, 230 Ill. 530, 82 N. E. 821, 15 L. R. A. (N. S.) 1167. From all the facts and circumstances shown on this record I think the question of contributory negligence of the deceased was properly submitted to the jury. The judgments of the Appellate Court and the superior court are reversed and the cause is remanded to the superior court of Cook county. Reversed and remanded. CARTER, J. (specially concurring). I concur in the reversal of this judgment, but not in that part of the opinion which states that the court should have directed a verdict for the defendant. I cannot concede that the evidence is of such a nature, on the question of the contributory negligence of the deceased, as to have required such a ruling. The deceased was killed on a dangerous grade crossing, where several tracks of plaintiff in error crossed a public street. An ordinance required a flagman to be stationed there by plaintiff in error. There was a flagman at the crossing, but he was south of the freight train, which was standing across the street when deceased and his wife attempted to cross the tracks on this street; the flagman being in a position where he could not warn them of the approaching danger. The railroad company, in the running of its trains, is required to use ordinary care and prudence to guard against injury to those who may be traveling upon the public highway, whether that be required by ordinance or statute. The fact that a statute or ordinance may only provide one precaution does not relieve "the company from adopting such others as public safety and common prudence may dictate." Chicago, Burlington & Quincy Railroad Co. v. Perkins, 125 Ill. 127, 17 N. E. 1. The evidence is in conflict as to when deceased first discovered the train which caused his death. Counsel for plaintiff in error rely upon the testimony of two of its employés to show that deceased knew of such approach in time to avoid the danger. These two witnesses could not talk English. It is not at all clear to my mind that deceased understood the warning which they claimed they gave him as to the approach of the train. Furthermore, the testimony of these two witnesses does not fully harmonize as to when and how the warning was given. On account of 1. GRUBB v. TURNER. (259 Ill. 436) (Supreme Court of Illinois. June 18, 1913. Rehearing Denied Oct. 15, 1913.) ELECTIONS (§ 180*)-BALLOTS-MARKING OF BALLOTS-SUFFICIENCY. Under the statute providing a method for indicating the voter's choice by making a cross in the circles or squares on the ballots, a ballot marked with the word "Yes" in a party circle must be rejected. [Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 151-155, 157; Dec. Dig. § 180.*1 2. ELECTIONS (§ 177*)-BALLOTS-INDORSEMENT WITH INITIALS OF JUDGE OF ELECTION NECESSITY. Ballots not indorsed with the initials of a judge of election are properly rejected. [Ed. Note.-For other cases, see Elections, Cent. Dig. § 149; Dec. Dig. § 177.*1 3. ELECTIONS (§ 194*)-BALLOTS - MARKING OF BALLOTS-IDENTIFICATION. A ballot marked on the face with a purple indelible pencil, and on the back with heavy marks made with an indelible pencil, almost election, contains a distinguishing mark, and obliterating the initials of one of the judges of must be rejected. [Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 166, 167; Dec. Dig. § 194.*] 4. ELECTIONS (§ 194*)-BALLOTS MARKING OF BALLOTS-IDENTIFICATION. A ballot having a cross in the Democratic circle and horizontal lines through the circles of the other five tickets has a distinguishing mark, and is properly rejected. [Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 166, 167; Dec. Dig. § 194.*] ELECTIONS (§ 180*)-BALLOTS 5. MARKING OF BALLOTS-IDENTIFICATION. A straight Democratic ticket marked in the circle, with no other mark on it, except the reversed figure "3" between the square before the name of "W. Duff Piercy," candidate for senator, and "W" and the figure "3" between "W" and "Duff," must be counted for the Democratic candidate for clerk of the circuit court; the | properly counted for the Republican candidate voter probably intending to cast three votes for for a county office. the candidate for senator. [Ed. Note. For other cases, see Elections, Cent. Dig. §§ 151-155, 157; Dec. Dig. § 180.*1 6. ELECTIONS (§ 194*)-BALLOTS OF BALLOTS. MARKING Ballots each marked with a cross in the circle at the head of one of the tickets or with crosses in the squares in front of the names of candidates, and with a cross in front of the name of a candidate for President or Vice President or both, sometimes on the same ticket which was marked in the circle, sometimes on another ticket, and sometimes in front of the name of a candidate for President on one ticket and for Vice President on another, or with lines drawn through the name of a candidate for President on a ticket marked in the circle and a cross placed in front of the name of another candidate for President, do not contain distinguishing marks, and they must be counted for the candidates for whom a choice is expressed in accordance with the statute. [Ed. Note. For other cases, see Elections, Cent. Dig. §§ 166, 167; Dec. Dig. § 194.*] 7. ELECTIONS (§ 180*)-BALLOTS OF BALLOTS. MARKING A straight Republican ticket having no marks on it except a cross in the Republican circle and another cross drawn through the middle of the name of the Prohibition candidate for President must be rejected, for the mark does not indicate any intention on the part of the voter. [Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 151-155, 157; Dec. Dig. § 180.*1 8. ELECTIONS (§ 180*)-BALLOTS MARKING OF BALLOTS. Ballots each marked with a cross in each square on the Republican ticket, and marked with a cross in the circle at the head of the Progressive ticket, or with a cross in front of the name of the Progressive candidate for President, and with a cross in front of the Republican candidate for Vice President, must be counted, though the Republican ticket had two blank spaces under the name of the candidate for representative, before which were squares in which crosses were marked. [Ed. Note.-For other cases, see Elections, Cent. Dig. 88 151-155, 157; Dec. Dig. § 180.*1 9. ELECTIONS (§ 194*)-BALLOTS -MARKING OF BALLOTS. A ballot having a cross in the Republican circle which shows through on the back, caused by the pressure of the pencil on the face of the ballot resting on a soiled support, must be counted. [Ed. Note. For other cases, see Elections, Cent. Dig. §§ 166, 167; Dec. Dig. § 194.*] 10. ELECTIONS (§ 180*)-BALLOTS OF BALLOTS. MARKING Ballots marked with a cross in the Progressive circle while the Progressive ticket had no candidates for county officers, and containing the names of candidates on the Republican ticket written in the blank left for names of candidates for county offices, with a cross in the square before each name printed on the Republican ticket, must be counted. [Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 151-155, 157; Dec. Dig. § 180.*1 11. ELECTIONS (§ 180*)-Ballots MARKING OF BALLOTS. A ballot marked with a cross in the Republican circle and a cross in each square, made by drawing a continuous straight line through the squares from top to bottom and crossing it with a horizontal mark in each square, was [Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 151-155, 157; Dec. Dig. § 180.*] 12. ELECTIONS (§ 194*)-BALLOTS MARKING OF BALLOTS. A ballot marked with a heavy cross in the Republican circle, each arm extending over an inch outside the circle, must be counted. [Ed. Note.-For other cases. see Elections, Cent. Dig. §§ 166, 167; Dec. Dig. § 194.*] 13. ELECTIONS (§ 194*)-BALLOTS-MARKING OF BALLOTS. Ballots marked with a cross in the Republican circle, with irregular lines across the face of four of the tickets, cannot be counted. [Ed. Note. For other cases, see Elections, Cent. Dig. §§ 166, 167; Dec. Dig. § 194.*] 14. ELECTIONS (§ 180*)-BALLOTS MARKING OF BALLOTS. - A ballot containing lines crossing in the square opposite a candidate's name must be counted for the candidate. [Ed. Note.-For other cases, see Elections, Cent. Dig. 88 151-155, 157; Dec. Dig. § 180.*1 18. ELECTIONS (§ 194*)-BALLOTS MARKING OF BALLOTS. A ballot marked in the Republican circle, the Progressive circle, and in the square opposite the name of the candidate of the Republican party for a county office, and a curved line drawn at the head of the ballot from the Republican to the Progressive circle, containes a distinguishing mark, and cannot be counted. [Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 166, 167; Dec. Dig. § 194.*] 19. ELECTIONS (§ 194*)-BALLOTS MARKING OF BALLOTS. [Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 151-155, 157; Dec. Dig. § 180.*1 21. ELECTIONS (§ 194*)-BALLOTS - MARKING OF BALLOTS. printed, one on the Republican ticket and the, The court ordered 1 vote deducted from the other on the Democratic ticket, the ballot must appellant's total for reasons which will be be counted. stated hereafter, thus reducing his total vote to 2,530. The appellant now insists that 7 ballots should have been counted for him which were not, and that 39 ballots were wrongly counted for the appellee. The appellee has assigned cross-errors on the action of the court in refusing to count 1 ballot for him and in counting 10 ballots for the appellant. The appellant was the Democratic candidate and the appellee the Republican. The original ballots which are in controversy have been certified to us. A ballot having five crosses on its face, two made with an indelible purple pencil and three with a black pencil, must be counted, for the marks cannot themselves be held to be distinguishing marks. [Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 166, 167: Dec. Dig. § 194.*] 22. ELECTIONS (§ 180*)-BALLOTS - MARKING OF BALLOTS. A ballot containing a cross in the Democratic circle, made by blurred, irregular, and confused lines, must be counted. [Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 151-155, 157; Dec. Dig. § 180.*] 23. ELECTIONS (§ 194*)-BALLOTS OF BALLOTS. A ballot containing a small circle within the circle at the head of a party ticket and a cross inside the small circle must be rejected. [1] The court refused to count ballots Nos. 1, 65, 72, 74, 81, 99, and 114 for the appellant. No. 1 was marked with the word "Yes" in the Democratic circle. The statute provides MARKING the method for indicating the voter's choice by making a cross in the circle or squares on the ballot, and unless there is an honest attempt on the part of the voter to comply with this provision of the law his ballot will be rejected. Slenker v. Engel, 250 Ill. 499, 95 N. E. 618. This ballot was properly rejected. [2] Nos. 65, 74, and 99 were not indorsed with the initials of a judge of election. They were properly rejected. Brents v. Smith, 250 Ill. 521, 95 N. E. 484; Slenker v. Engel, supra. We are asked to reconsider the previous decisions of this question, but it has often been considered and determined, and we regard it now as a settled rule, that ballots not having the initials of a judge of élection indorsed cannot be counted. [Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 166, 167; Dec. Dig. § 194.*] 24. ELECTIONS (§ 221*)-CONTESTS-BALLOTS. A ballot having the initials of one of the judges and properly folded to go in the ballot box and marked on the inside, found on the floor after the ballots had been counted and sealed up, cannot be counted, in the absence of evidence that it had actually been in the ballot box and had been voted. [Ed. Note.-For other cases, see Elections, Cent. Dig. § 191; Dec. Dig. § 221.*] Appeal from Wayne County Court; A. N. Tolliver, Judge. Election contest by William L. Grubb against King Turner. From a judgment for plaintiff, defendant appeals, and plaintiff assigns cross-errors. Reversed and remanded, with directions. Cooper & Burgess, of Fairfield, for appellant. Creighton & Thomas and Bonham & McLin, all of Fairfield, for appellee. DUNN, J. The appellant and the appellee were candidates for the office of clerk in the circuit court of Wayne county at the election on November 5, 1912. This is an appeal from a judgment of the county court rendered in a proceeding to contest the election, and its decision depends upon the counting of 58 ballots, 11 of which were counted for the appellant, 39 for the appellee, and 8 were not counted. The canvassing board found that the appellant received 2,529 votes and the appellee 2,520. The ballots were counted on the hearing, and there were counted, without objection,. 2,510 votes for the appellant and 2,487 for the appellee. Seventy-five ballots were objected to, but subsequently appellee withdrew his objections to 10 of the ballots and the appellant withdrew his objections to 7, thus making the uncontested vote of the appellant 2,520 and of the appellee 2,494. The addition of the contested votes as they were counted by the court made the appellant's total 2,531 and the appellee's 2,533. [3] Ballot No. 114 is marked on the face with a purple, indelible pencil. On the back some marks appear made with a black pencil, which probably were the initials of L. H. Weaver, one of the judges of election, though it is impossible to tell, for they are almost obliterated by heavy marks made with an indelible pencil. These marks could not have been placed there with any intention of indicating the voter's choice, but must have been for some ulterior purpose. They deface the ballot by obliterating the means of identification, and they constitute a distinguishing mark. This ballot was properly rejected. [4] No. 81 has a cross in the Democratic circle and horizontal lines through the circles in each of the other five tickets. These must be regarded as distinguishing marks, and the ballot was properly rejected. [5] W. Duff Piercy was a candidate for senator in the Forty-Sixth district, and immediately above his name appear the words "For senator" and below it the words "For representatives." Ballot No. 72 is a straight Democratic ballot marked in the circle and having no other mark on it except that between the square before Piercy's name and the initial "W" appears a reversed figure "3" and between the "W" and "Duff" appears the figure "3." figure "3." The voter probably intended to cast three votes for Piercy. This ballot should have been counted for appellant. |