Galena and Chicago Union Railroad Co. v. Dill. might be seen by the exercise of ordinary prudence, they should be held to all reasonable effort to avoid it. The safety of those of whom they have the charge, as well as those traveling on the highway, requires it. On the other hand, persons using the highway must be held to the use of all reasonable efforts on their part, in like manner to foresee and avoid danger. A want of proper circumspection on their part is liable to produce disastrous consequences to railroad travelers, as well as to themselves. When the company have erected the proper signs and notices at the point of intersection, the highway traveler should under ordinary circumstances heed its warning, and use the proper precaution to avoid a collision, and failing to do so, negligence more gross on the part of the company only will render them liable for injuries received. The question of negligence is one of fact, which must be left to the determination of the jury. It depends to so great an extent upon the surrounding circumstances of each case, that unless it is gross, no rule can be adopted. The jury must necessarily determine from the situation of the parties, and all of the surrounding circumstances, whether there has been negligence on either part, or whether the occurrence was purely accidental, and without the fault of either party. The court has no authority to determine the fact of negligence, unless it be in the non-observance of a positive requirement of law. Whether the failure to ring a bell or sound the whistle is negligence, is a question of fact for the jury, and could not be so regarded, unless its omission occasioned the collision, producing the injury. Where such acts are not required by legislative enactment, their omission does not raise a legal inference that the injury resulted from a want of their performance. By this instruction the jury are told that if the appellants, by reason of any negligence in not ringing the bell, or sounding the whistle of the locomotive, within a reasonable distance from the crossing of the highway, and the plaintiff was free from fault, that they should find for the appellee. This instruction assumes that it was a legal duty imposed upon the appellants to ring the bell, or sound the whistle, and that its omission rendered them liable. The law has made no such provision. This could not be negligence unless its omission produced the injury complained of, and the law not having imposed the liability, the court could not give to its omission such an effect. It may be, that the result would have been the same, if the bell had been rung, or the whistle sounded, and if so, it was not negligence to omit it. The instruction should have left it to the jury to say, whether the omission to ring the bell or sound the 22 272 33 232 22 272 54a 59 Dix et al., use, etc., v. Mercantile Ins. Co. Same v. Chicago City Ins. Co. whistle was negligence, which produced the injury, and failing to do so, it was error to give it. There is no other error perceived in the record, either in the admission or rejection of evidence, or the giving or refusing the various instructions asked. The judgment is reversed and the cause remanded. Judgment reversed. JOEL H. DIX et al., to the use of James E. Southworth The SAME, Plaintiffs in Error, v. THE CHICAGO CITY INSUR- ERROR TO COOK. An action on a contract must be in the name of the party in whom the legal interest is vested. A party suing, who shows he has not any interest in the cause of action, cannot recover. Where one of the three partners who had effected an insurance, afterwards and before a loss, assigns his interest to the other two, without any notice to, or consent by the insurers; the two cannot recover on the policy, especially where they so declare in their declaration, and the policy forbids such an assignment. THESE two cases came before the court, upon the same state of pleadings. Joel H. Dix, Horatio G. Sinclair and George J. Harris, plaintiffs in this suit, (who sue for the use of James E. Southworth, Albert Slauson, Valorus Southworth and Harvey Farrington, Jr., carrying on business under the name and style of Southworth, Slauson & Co.,) by Cyrus Bentley, their attorney, complain of the Mercantile Insurance Company, a corporation established and existing under the laws of the State of Illinois, defendants in this suit, who have been summoned, etc., of a plea of trespass on the case upon promises: For that whereas, heretofore, to wit, on the twenty-seventh day of September, A. D. 1856, at Chicago, to wit, at the county of Cook, aforesaid, by a certain instrument or policy of insurance then and there made under the hands of Cyrenius Beers, the president, and Thomas Richmond, the secretary of the said corporation, and countersigned by Justin Parsons, the agent of said company, at Chicago, aforesaid, the said Cyrenius Beers, Thomas Rich Dix et al., use, etc., v. Mercantile Ins. Co. Same v. Chicago City Ins. Co. mond and Justin Parsons, acting and being duly authorized for and on behalf of the said corporation, the said Mercantile Insurance Company, in consideration of twenty-seven dollars to them paid, the receipt whereof was thereby acknowledged, did thereby agree to insure the said plaintiffs by their then name or style of Dix, Sinclair & Harris, against loss or damage by fire, to the amount of two thousand dollars, on their stock of groceries, (meaning their stock of groceries,) contained in brick building situated in and known as No. 43 South Water street, city of Chicago, Illinois; and the said corporation thereby promised and agreed to make good unto the said assured, their executors, administrators and assigns, all such immediate loss or damage, not exceeding in amount the sum insured, as should happen by fire to the property above specified, from the twenty-seventh day of September, one thousand eight hundred and fifty-six, (at noon,) unto the twenty-seventh day of September, one thousand eight hundred and fifty-seven, (at noon,) the said loss and damage to be estimated according to the true and actual cash value of the property at the time the same should happen, and to be paid within sixty days after notice and proof thereof, made by the assured and received at their office, in conformity to the conditions annexed to said policy; provided always, and it was thereby declared, that the said corporation should not be liable to make good any loss by theft or any damage by fire which might happen or take place by means of invasion, etc. And it was moreover declared, that the said policy was made and accepted in reference to the conditions thereto annexed, which were to be used and resorted to in order to explain the rights and obligations of the parties thereto, in all cases not therein otherwise specially provided for, as by the said instrument or policy of insurance, reference being thereunto had, will more fully appear; and the said plaintiffs in fact say that the said conditions annexed to said policy are (amongst others) as follows, to wit: "7. 7. Policies of insurance subscribed by this company shall not be assignable without the consent of the company, expressed by indorsement made thereon. In case of assignment without such consent, whether of the whole policy or any interest in it, the liability of the company in virtue of such policy shall thenceforth cease; and in case of any transfer or change of title in the property insured by this company, or of any undivided interest therein, such insurance shall be void and cease." Of which said instrument or policy of assurance, and the conditions thereto annexed, the said defendant afterwards, to wit, on the day and year first aforesaid, at the county aforesaid, had notice. Dix et al., use, etc., v. Mercantile Ins. Co. Same v. Chicago City Ins. Co. And thereupon afterwards, to wit, on the day and year last aforesaid, at the county aforesaid, in consideration that the said plaintiffs, at the special instance and request of the said defendants, had then and there paid to the said defendants the said sum of twenty-seven dollars as a premium for the insurance of two thousand dollars upon the stock of groceries mentioned in the said instrument or policy of insurance, and had then and there undertaken and faithfully promised the said defendants to perform and fulfil all things in the said policy and the conditions thereunto annexed contained, on the part and behalf of the said assured to be performed and fulfilled, they the said defendants undertook and then and there faithfully promised the said plaintiffs that they (the said defendants) would assure the said plaintiffs against loss or damage by fire to the amount of two thousand dollars upon the said stock of groceries, and would perform and fulfill all things in the said instrument or policy contained on their part and behalf to be performed and fulfilled. And the said plaintiffs in fact further say, that they the said plaintiffs, at the time of making the said policy of insurance, and from thence until the 12th day of February, A. D. 1857, were interested jointly as copartners in the said insured stock of groceries, to the amount or value of all the moneys by them ever insured or caused to be insured thereon; that on the said last mentioned day, the interest of the said Sinclair therein was sold and transferred to the said Dix & Harris, and that from the said last mentioned day until the loss and damage hereinafter mentioned, the said plaintiffs, Dix & Harris, were jointly interested therein to the amount or value aforesaid, to wit, at the county aforesaid, and that the said stock of groceries in the said policy mentioned, afterwards, to wit, on the second day of March, A. D. 1857, to wit, at the county aforesaid, was burnt, consumed and destroyed by fire, and that no part thereof was lost by theft, etc. And the said plaintiffs further say, that although they the said plaintiffs have in all things conformed themselves to and observed all and singular the said articles and stipulations, conditions, matters and things, which on their part were to be observed and performed, according to the form and effect of the said policy, and of the said conditions thereunto annexed, and although the stock and fund of the said company, always from the time of making the said policy, hitherto have been and yet are sufficient to pay to the said plaintiffs the said damage and loss sustained by the said fire; and although sixty days after notice and proof thereof made by said plaintiffs and received by said defendants, at their office, in conformity to the condi Dix et al., use, etc., v. Mercantile Ins. Co. Same v. Chicago City Ins. Co. tions annexed to said policy, had long elapsed before the commencement of this suit, of all which said several premises the said defendants afterwards, to wit, on the day and year last aforesaid, at the county aforesaid, had notice and were then and there requested by the said plaintiffs to pay them the said sum of two thousand dollars so by them insured as aforesaid; yet the said defendants, not regarding their said promises and undertakings so by them made as aforesaid, did not, nor would when they were so requested as aforesaid, or at any time before or since, pay the said sum of two thousand dollars, or any part thereof, but have hitherto wholly neglected and refused so to do and still neglect and refuse so to do, to wit, at the county aforesaid. The second count is like the first, except as to the amount of the policy, which is $3,000 instead of $2,000-this suit being brought upon two policies, one for $2,000 and one for $3,000, making a total of $5,000. The common counts were added, to which a nolle prosequi was subsequently filed. To this declaration defendants filed a demurrer, assigning as special causes, 1st. That it appears by said count, that, at the time of the fire, the plaintiffs did not own the goods covered by said policy; 2nd. That during the continuance of said policy, and before the fire, the said plaintiff, Sinclair, in violation of said policy and without the written consent of the said defendants, sold his interest in the goods insured to the said Joel H. Dix and said George J. Harris, and that the same was so owned at the time of the fire; 3rd. That said count of said declaration is otherwise insufficient, uncertain and informal, etc. There was a like demurrer to the second count of the declaration. The court, MANIERRE, Judge, presiding, sustained the demurrer to this declaration. To correct this judgment, the plaintiffs sued out this writ of error. C. BENTLEY, for Plaintiffs in Error. SHUMWAY, WAITE AND TOWNE, for Defendants in Error. BREESE, J. We do not well see, how this action can be maintained and at the same time preserve an important principle which lies at the very foundation of suits at law. That principle is, that an action on a contract must be brought in the name |