the public roads and bridges of their respective towns, and they are required to exercise such care and superintendence over them as the public good may require, as provided by the statute. While they do not own the highways, they are the agents of the public to look after its interests in them, and are authorized by law, within certain limits, to fix the rate of the tax levy necessary for their maintenance, etc. It is therefore their duty to resist the collection of an illegal tax assessed on any highway under their control, as well as a tax assessed on a highway alleged to be under their control, but which, as a matter of fact, is not a highway at all. A tax on an alleged but nonexistent highway is assessed without warrant of law, and it is a proper defense to an action to collect the tax to show that there is no such public highway. It was incumbent on plaintiffs in error to offer proof of the existence of the road to support the action under the allegations of the declaration. Having offered their evidence tending to prove the establishing of the road under the statute, it was competent for defendants in error to controvert such evidence, or to prove, if they were able, that such road had been vacated or abandoned. We are of the opinion that the highway commissioners were not estopped from presenting any of these defenses, that the evidence was properly admitted, and that the modification of the first instruction asked by plaintiffs in error, submitting this question to the jury, was proper.

But the plaintiffs did not undertake to prove a highway by dedication or prescription, and we are of the opinion that it tended to mislead the jury to allow the defendants to make the defense, by testimony and by instructions asked and given, that no highway had been established there by dedication or prescription. Every instruction given to the jury on behalf of the defendants contained this vice, and the questions whether the alleged highway had been established by statutory proceedings, as the plaintiffs had attempted to prove, and, if so, whether it had been abandoned or not, seem to have been to a great degree lost sight of; and this was the principal, if not the only proper, defense. The course pursued by the defendants, against the objections of the plaintiffs, | was well calculated to obscure the real issue and to mislead the jury. Again, over the objection of the plaintiffs, the court permitted the defendants' witnesses to answer this question: "I will ask you if there is or was a public road there?"-referring to the location of the alleged road. The question was answered by some of them in the negative. This was substantially the question the jury had to determine from the evidence, and it was not the province of the witnesses to express to the jury their opinions on that question.

* * *

It is also contended that the plaintiffs' case was prejudiced in the minds of the jury

by improper remarks made during the trial by the presiding judge, but as the judgment must be reversed on other grounds, and remanded for another trial, upon which it must be assumed that no such remarks will be made, we deem it unnecessary to pass on this assignment of error.

The judgment will be reversed, and the cause remanded. Reversed and remanded.

(198 III. 200)

ILLINOIS CENT. R. CO. v. ATWELL. (Supreme Court of Illinois. Oct. 25, 1902.) MASTER AND SERVANT-DEATH-DAMAGESCONTRIBUTORY NEGLIGENCE EVIDENCESUFFICIENCY-FELLOW SERVANTS-TRIAL

INSTRUCTIONS.

1. Where sectionmen were working by a hand car which was on the track when the whistle of an engine was heard, and they were directed to remove the hand car, and the order was improper as exposing the men to great peril, whether obedience to the order involved so great hazard that a man of ordinary prudence would not have undertaken it was a question for the jury.

2. Where the death of a railroad section hand was due to an attempt to obey au improper order of the foreman, his administrator might recover, the foreman not being a fellow servant with regard to the exercise of his power to command.

3. In an action against a railway company for damages for causing the death of an employé, it was not error to omit to specially instruct on the measure of damages, in view of improper evidence by the widow of the employé that she was in poor health and had no means of support, defendant not having objected to the evidence or requested an instruction.

Appeal from appellate court, Fourth district.

Action by Laura Atwell, administratrix, against the Illinois Central Railroad Company. From a judgment of the court of appeals (100 Ill. App. 513) affirming a judgment for plaintiff, defendant appeals.

Affirmed.

W. W. Barr and J. M. Dickinson, for appellant. Wm. A. Schwartz and Andrew S. Caldwell, for appellee.

CARTWRIGHT, J. The appellate court for the Fourth district affirmed a judgment recovered by appellee, as administratrix of the estate of George Atwell, deceased, against appellant, in the circuit court of Jackson county, for pecuniary damages resulting to the widow and next of kin from the death of said George Atwell, which was alleged to have been caused by the negligence of appellant. The defendant offered no evidence, but at the conclusion of the evidence introduced by plaintiff asked the court to direct a verdict of not guilty. The court refused the request, and the question whether the court erred in such refusal is the principal question in the

case.

The facts proved on the trial were, in substance, as follows: George Atwell was employed by the defendant as a section hand at Carbondale. Between 3 and 4 o'clock on the

morning of February 8, 1901, he was called by the section foreman, and directed to call some of the other section hands, which he did. The occasion for calling out the men at that time in the morning was to repair a broken switch about three-quarters of a mile from the depot, in the north yards, and they went with the foreman to that place on a hand car. When they arrived it was found that a new switch point was needed, and by direction of the foreman they went farther north with the hand car to get the necessary tools and the switch point. They first went to the toolhouse, about 500 feet north of the place where the switch was torn up. There they got the necessary tools, and put them on the car, and went back south about 200 feet, where they left the hand car on the track and went to get the switch point, which lay among some railroad iron about 40 feet east of the track. The switch point was about 15 feet long, and weighed 260 pounds. They had brought it part way, and were all helping to carry it when a whistle was blown, and the foreman called to them that the train was coming, and to come and get the car off the track quick. It was then 20 minutes after 4 o'clock of a dark and foggy morning, and there was a coalhouse situated so that the men could not see an approaching train from the place where they were. They ran to the track, and the foreman and three of the men got over on the west side, and pulled one end of the hand car off. Two of the men did not attempt to cross, as there was not time enough, but Atwell, who was behind, came running and passed them, and just as he stepped one foot over the east rail of the track to get hold of the car the train struck him. The men on the other side jumped back at the same time and escaped injury. The train was running about 35 or 40 miles an hour, and the hand car was demolished, and Atwell was thrown about 35 feet and killed. The men could not see the train, on account of the coalhouse, until they reached the track.

The first count of the declaration charged the defendant with carelessly and improperly driving and managing the locomotive engine and train, and there was no evidence tending to support that charge. The second count charged the defendant with negligence of its section foreman in negligently and improperly commanding the section laborers to run and get the hand car off the track, and we think it manifest, from the above statement of facts proved, that the court was right in refusing to direct a verdict upon the issue formed under that count. The order was improper, and was negligently given by the foreman, without due regard to the safety of the men under his command. By the order he exposed them to great peril, and it resulted in the death of Atwell. This does not appear to be denied, but it is urged that the evidence failed to show that Atwell was in the exercise of ordinary care for his own

safety. Counsel say that the hazard and risk involved in obedience to the order were so great that a man of ordinary prudence would not have undertaken it, and that the command was unreasonable and the peril and danger so great that Atwell was not bound to obey it. It is true that the servant must act with that degree of care which an ordinarily prudent man would exercise under the same circumstances, but he is to be judged by all the circumstances and in view of the order of the master. The servant owes the duty of obedience to the commands of the master, and if he is ordered to perform an act he does not assume the risk of obeying the order unless the risk is so great that a man of ordinary prudence would not encounter it. Offutt v. Exposition, 175 II. 472, 51 N. E. 651; Gundlach v. Schott, 192 III. 509, 61 N. E. 332, 85 Am. St. Rep. 348. The jury were to judge of Atwell's conduct by considering the order given; the habit and duty of obedience to orders gen erally; the suddenness with which he was called upon to act, with the consequent lack of time for deliberation; the darkness and fog; the fact that from his position he was unable to see the approaching train and all the surrounding conditions. The court would not have been justified in taking the case from the jury on the ground that the evidence did not tend to prove ordinary care on his part.

Again, it is insisted that the negligence charged is the negligence of a fellow servant, and therefore plaintiff could not recover. While the foreman and Atwell may have been, in many respects, fellow servants, they were not in that relation as to the exercise of authority by one over the other. The injury resulted from the improper exercise of the foreman's power to command, and in respect to the exercise of such power they were not fellow servants. Railroad Co. v. May, 108 111. 288.

There was no error in refusing to direct a verdict.

There are some general criticisms of the instructions given at the request of the plaintiff, but they were the usual and approved statements of the law in cases of this character. It is not complained that the court refused any instruction asked by the defendant, and the only thing really insisted upon with respect to the instructions is that the court ought to have enlightened the jury more particularly on the question of the measure of damages in view of misleading and prejudicial evidence before the jury affecting that question. The evidence referred to was the testimony of the plaintiff, who was the widow of Atwell, to the effect that her health was bad and that she had no income or means of support from any source. The evidence was incompetent, and if it had been objected to would certainly have been excluded. Railroad Co. v. Baches. 55 Ill. 379; Railway Co. v. Powers, 74 Ill. 341;

Railroad Co. v. Moranda, 93 Ill. 302, 34 Am. Rep. 168; Railroad Co. v. Woolridge, 174 Ill. 330, 51 N. E. 701. Defendant might have prevented such evidence going to the jury, but made no objection to it, and did not prepare or ask for any instruction with respect to it. It was not the duty of the court, of its own motion, to instruct the jury specially for the purpose of obviating the effect of evidence admitted without objection. Defendant might have asked and obtained such proper instructions concerning the evidence, or its proper relation to the question of damages, as it saw fit.

There is no error in the record, and the judgment of the appellate court is affirmed. Judgment affirmed.

1. The bringing of an attachment suit is not an election of remedies barring another action, it having, by stipulation of the parties, been dismissed without prejudice, the position of the parties not having been changed by commencement thereof, and there being no intervening rights.

2. Evidence in suit for proceeds of mortgaged cattle held sufficient to show that the mortgagee took possession of the cattle before any other rights attached.

3. Failure to record a chattel mortgage is immaterial, the mortgagee having taken possession of the property before any other rights attached.

4. The mortgagee's rights by reason of possession he has taken of the mortgaged chattels is not affected by the subsequent wrongful seizure of them by the mortgagor.

Appeal from appellate court, First district. Bill of interpleader by Wood Bros. against the First National Bank and the Geo. R. Barse Live Stock Commission Company. From a judgment of the appellate court (99 Ill. App. 198) affirming a decree for said company, said bank appeals. Affirmed.

Alden, Latham & Young, for appellant. Paddock & Billings, for appellee.

HAND, J. This was a bill of interpleader filed by Wood Bros. on June 16, 1898, against the appellant, the appellee, and A. H. Wootters and T. F. Smith, in the superior court of Cook county, asking the direction of the court in the disposition of $2,397.47 in their hands, the net proceeds of a sale of 155 head of cattle which had been shipped to them from Gibson Station, Ind. T. On October 22, 1898, an interlocutory decree was entered in the cause sustaining the bill of interpleader, and decreeing that T. F. Smith and A. H. Wootters, who had each filed disclaimers, had no Interest in the fund in controversy, order

3. See Chattel Mortgages, vol. 9, Cent. Dig. §§

446, 447.

ing that the answers of appellant and appellee stand as interpleas or statements of their respective claims, and that the complainants deposit the fund, then amounting to $2,334.47, with the clerk of the court, and that they be dismissed out of the cause, and upon the final hearing the issues were found in favor of appellee, and it was decreed to be entitled to the fund, which decree has been affirmed by the appellate court for the First district, and a further appeal has been prosecuted to this court.

The bill of interpleader alleged that complainants were engaged in the live stock commission business at the Union Stock Yards, Chicago; that on September 3, 1896, they received 155 head of cattle from Indian Territory that had been shipped to them by A. H. Wootters; that said cattle were sold by them as commission merchants, on the open market, and, after deducting the expenses, commissions, etc., the sum of $2,397.47 was realized; that an itemized account of sales was promptly sent to said shipper on the 3d day of September, 1896, and that they received a telegram from A. H. Wootters, dated Wagoner, Ind. T., September 3, 1896, instructing them to remit the proceeds to the National Bank of the Republic, St Louis, for account of H. F. Moore, cashier, Crockett; that on September 5, 1896, they received a letter from A. H. Wootters confirming said telegram; that said H. F. Moore, referred to in the letter and telegram, was the cashier of the First National Bank of Crockett; that the First National Bank of Crockett notified the complainants it was entitled to the proceeds of the sale of the cattle under an alleged chattel mortgage executed by one T. F. Smith; that on September 11, 1896, the Barse Live Stock Commission Company brought an attachment suit in the superior court of Cook county,-cause No. 177,115,-in which A. H. Wootters was named defendant and the complainants named as that the said attachment suit garnishees; was pending until June 3, 1898, when it was dismissed, and complainants discharged as garnishees; that both the Bank of Crockett and the Barse Commission Company were claiming the money in the hands of complainants. Appellant filed an answer and interplea, alleging that it was entitled to the fund in the hands of the complainants by the terms of an agreement entered into by T. F. Smith in August, 1896, whereby Smith, being the owner of the cattle in controversy, agreed to ship the cattle in the name of A. H. Wootters, but for appellant, and thereby to assign and transfer to appellant the cattle in question for the purpose of taking up an indebtedness of said Smith to appellant, which was due September 1, 1896; that the cattle had been shipped, in accordance with the said agreement, for appellant; that the delivery of the cattle to Wootters was a delivery to appellant, and that appellant was entitled to the fund. Appellee filed an answer and interplea, claiming to be entitled to the fund under the terms

of a chattel mortgage executed by T. F. Smith to appellee on October 25, 1895, said Smith being a resident of Crockett, Houston county, Tex. The cattle were located in the Creek Nation, Ind. T. That the mortgage was filed for record in Houston county, Tex., October 28, 1895, and on October 31, 1895, was filed in the office of the clerk of the United States court for the Northern district of Indian Territory, in accordance with the United States statutes, and that, consequently, appellee was entitled to the fund.

Three points are urged on this appeal as grounds for a reversal of the decree, two of them being questions of law and one a question of fact, viz.: (1) The prosecution of the attachment suit against Wootters by appellee was a bar to a recovery in this action. (2) The mortgage of the Barse Company was void as against the rights of appellant that accrued on August 31, 1896. (3) At the time the cattle in controversy were shipped to Chicago they were in the possession of T. F. Smith, and not in the possession of the Barse Company.

1. It is averred in the bill of interpleader that on September 11, 1896, an attachment suit was begun in the superior court of Cook county, wherein A. H. Wootters was made defendant and Wood Bros. were served as garnishees, for the purpose of reaching the proceeds of said cattle; that said attachment suit was dismissed June 3, 1898. The answer of both parties admitted the commencement of said attachment suit, and its dismissal without prejudice on the date named in the bill, and the evidence shows that the suit was dismissed on the stipulation of the parties thereto. We are of the opinion the mere bringing of the attachment suit by the Barse Company, which suit did not proceed to judgment, but was dismissed upon written stipulation without prejudice, did not constitute an election, nor estop the Barse Company from setting up its claim to the fund in this case. In Gibbs v. Jones, 46 Ill. 319, it was held that, when an action of trover is brought, an action in assumpsit between the same parties, brought to recover the value of the property, and which was dismissed without prejudice, cannot be specially pleaded in bar of the action of trover. And in Flower v. Brumbach, 131 Ill. 646, 23 N. E. 335, it was said: "The circumstance of a party having elected one of several remedies by action will not, in general, preclude him from abandoning such suit; and, after having duly discontinued it, he may adopt any other remedy." To the same effect are Stier v. Harms, 154 Ill. 476, 40 N. E. 296, and Barchard v. Kohn, 157 Ill. 579, 41 N. E. 902, 29 L. R. A. 803. In Johnson-Brinkman Commission Co. v. Missouri Pac. Ry. Co., 126 Mo. 344, 28 S. W. 870, 26 L. R. A. 840, 47 Am. St. Rep. 675, it was held that an attachment suit brought by a vendor of personal property against his vendee, if dismissed before final judgment, does not estop him from subsequently main

taining an action of replevin to recover the chattels, in the absence of any intervening rights, injury, or change of position by reason of the attachment. The word "election," as applied to remedies, is but another term for "estoppel." There is no element of estoppel by record, as the attachment suit was not prosecuted to judgment; and there is no estoppel in pais, for neither Wootters nor the bank has taken such action, in consequence of the suing out of the attachment, that they will receive detriment, in a legal sense, from the conduct of plaintiff. There were no intervening rights in the case from the time of suing out the attachment until suit was dismissed. Nor does it appear that the bank was, by reason of the commencement of said suit, induced to change its position with respect to the fund in controversy. If the attachment suit had proceeded to judgment, or there were intervening rights, or the position of the parties, by reason of the commencement of the suit, had been changed, a different question would be presented; but it having been dismissed upon the written stipulation of all the parties, without prejudice to the rights of any of them, all are in the same position they would have been if the suit had never been begun.

2. Prior to the recording of the mortgage congress had extended the laws of the state of Arkansas over the Indian Territory, including the law in relation to the acknowledging and recording of chattel mortgages. It seems that the statutes of that state in express terms did not provide for the recording of chattel mortgages in cases where the mortgagor was a nonresident of the state, which defect was attempted to be cured by an act of congress approved February 3, 1897. The consideration of the effect of said curative act becomes wholly immaterial if the Barse Company had taken actual and open possession of the cattle covered by its mortgage prior to the time when the rights, if any, of the bank accrued, which question is involved in appellant's third proposition.

3. The trial and appellate courts both held that the appellee had taken actual and open possession of the 155 head of cattle in controversy prior to their shipment to Chicago, and from a careful examination of the record, which covers more than 900 pages, and is mainly made up of testimony bearing upon that proposition, much of which was heard in open court by the chancellor, we are inclined to agree with the finding of said courts. The mortgage was for $35,254.91, bore date October 25, 1895, and described the property as situated in the Creek Nation, Ind. T., viz.: "Twenty-one hundred head of steers of the ages of three years and upwards, each and all bearing some one of the following brands, namely: 7W on right side of loin, 07 on left side, LM on left side, and X on the left side, being and including the entire lot and number of cattle owned by me; all said cattle now located in my pastures near Wag

oner, Creek Nation, Indian Territory, and to be fed and grazed in said Creek Nation until shipped to the order of said George R. Barse Commission Company;" and the appellant admits that the 155 head of cattle in question were included within the above description, and covered by the chattel mortgage. The pastures mentioned in the mortgage had been leased by Smith from the owners. They were fenced, and comprised something like 40,000 acres of land, and were occupied by the cattle of T. F. Smith and Smith & Jones. The mortgage contained the usual insecurity clause, empowering the mortgagee, in the event of the mortgagor selling or attempting to sell the mortgaged property, or to reinove or attempt to remove the same, or in the event of the mortgagee feeling itself insecure, to enter upon the premises, or any other place where the mortgaged property might be found, and to remove and dispose of the same. Prior to the execution of the mortgage, Stonebraker, the agent of the Barse Company, went to the Indian Territory, and in company with Smith made an examination of the cattle. He and Smith then returned to Kansas City together, and the mortgage was executed and recorded. In the month of May, 1896, Stonebraker made another trip to the territory for the purpose of investigating the various securities heid by the Barse Company upon cattle located in that territory, and while there examined the Smith cattle. He testified with reference to the result of such examination and what followed, in open court, as follows: "It did not seem to me there was as many as twenty-one hundred head of 7W and 07 in the pasture, although I could not tell. *** When I returned to Kansas City, in June, I had a conversation with Mr. Waite in regard to the cattle, and I think, possibly, with Mr. Barse also. I told them it didn't seem to me there was twentyone hundred of Smith cattle in the pasture. *** Some time the forepart of July, I was in Wagoner again, but only for a day. I went through the Smith pasture, and then returned to Kansas City, and was there a day or two, and then returned to Wagoner, and remained there until fall. It was the latter part of July. I got a horse, and went through the Shannon and Edwards pastures, and made an examination, and became convinced that the Smith cattle were four hundred or five hundred short. I then reported to the Barse Company what I had found in reference to the cattle." In this statement Stonebraker is corroborated by the testimony of Joseph H. Waite, who was secretary and treasurer of the Barse Company in the years 1895 and 1896. He says: "In June, 1896, I sent Mr. Stonebraker out on an inspection of the various loans the Barse Company had, and he reported the condition of this loan, and I told him to take such measures as were necessary to protect the interest of the Barse Company. * I sent Stonebraker on a tour of inspection in May or June, 1896. It

was, I think, about the middle of July that I gave him instructions to protect the interest of the Barse Company. I gave him this instruction because he had reported he thought the loan was not altogether satisfactory. The reason why it was necessary for me, in the middle of July, to repeat these instructions, was that he had reported this loan needed looking after. He stated he thought the cattle were not all there. * * * I believe this very thorough inspection was made in July. **.* The reason why I did not act earlier was, as I have stated, Stonebraker did not report positively they were gone, but he had a suspicion." Stonebraker further testified that after he had made the final inspection of the cattle, and discovered the shortage, he went back to Kansas City, and informed Mr. Waite, and then returned to Wagoner, and remained there. He says: "When I returned I went to the ranch, and saw Mr. Redman [the foreman of T. F. Smith and Smith & Jones], and asked him if we could employ him. I returned to Wagoner at the 1st of August, or a day or two before the 1st, at the last days of July. There was nobody present when I talked with Redman. *** I put Redman in charge of these cattle right then and there, and he began acting from that day forward for the Barse Company, as their agent, under my instructions. I saw T. F. Smith after that, about the middle of August. *** It is my recollection that he was not on the ground until two weeks after I took possession; still he might have been. As I stated yesterday, my recollection is that he did not get there until about the 15th or 18th of August, and that is my recollection now, and still it is possible he was there sooner. When Smith came in, about the 15th or 18th of August, I had a conversation with him. He came in on the night train, and went immediately to the ranch the next morning. I was informed by some one that Smith had come in on the night train, and had gone out to camp early in the morning, and I went out immediately, and told him what I had done, and he didn't seem to be very well satisfied with it at first. Redman was present at the time. We talked the matter over, and then went back to town. Before we left we made a verbal agreement after we talked the thing over, and Smith consented to it. He first allowed that it would injure his credit, and this, that, and t'other, and there was plenty cattle there. and I needn't have been uneasy, and afterwards we went back to town. He consented to put Redman in charge of the cattle. He wanted to put Albert, his son, in charge, and he took me off from Redman, and said to just put Albert in charge of the cattle. Albert would do anything I wanted him to. Albert would make the best man. I told him that I preferred to have Redman. I informed Smith in the beginning that I had taken charge of the cattle under our mortgage, and he thought it was all unnecessary, and told me there