'Well, if I was satisfied that you said that, I would just mash your face right here for you.' I said: 'I will tell you, Joe; I will go with you to Mr. Nelson. Whenever it is convenient for you, I will make it convenient for me.' By this time he had walked up to me. After I told him that I would go with him to Nelson's, he says, 'Well, I don't want you to disgrace Pearl by speaking to her any more.' I said, 'I am not asking you nor any other damned man whether I can speak to my own children.' He says, 'Well, every time you see me on the street you are always making eyes at me.' I said, 'Dixon, I want nothing to do with you,' and I turned around and started down the street. Dixon says, 'You dirty cur! I will get you,' and jumped off this walk, and he came at me. By the walk I mean the wall. I told him to keep away,-that I did not want anything to do with him. He says, 'You dirty cur! I will get you.' Then I pulled out a gun and fired. I shot over his head, in the air. We clinched. He was scuffling for the gun, and so was I. He took a couple of soaks at me, and was trying to get the gun, and I was trying to prevent him from getting it. I got knocked down, and he got on top of me and was choking me. We were not very far apart when the first shot was fired. Dixon was out on the sidewalk. I was backing away from him, and he was following me up. He came toward me in a very threatening manner and told me, 'You dirty cur! I will get you.' I shot to keep him away from me. I didn't want anything to do with him, and many a time I have walked out of my way when I have seen him there, in order to keep from meeting him." The affray was witnessed by Mrs. Hammond, Joseph Eaton, Burt Urton, and Ella Archdale, whose testimony, on the whole, tended to corroborate the version given by the prosecuting witness, and by Thomas Carter, Minnie Brandenburg, August Reinman, and Christov Reinman, whose testimony tended to support the version of the plaintiff in error, particularly to the effect that Dixon was advancing on the plaintiff in error before the first shot from the revolver was fired; and some of these witnesses thought the men had clinched and were scuffling when the first shot was fired.

We thus refer to the testimony, not for the purpose of discussing it, but to show that the state of the evidence required that the jury should have been accurately instructed as to the legal principles involved in the determination of the guilt or innocence of the defendant of the charge of an assault with intent to murder. Every homicide is not necessarily murder. It may be manslaughter, or the killing be justifiable as in necessary selfdefense, and be no offense at all. The charge in the indictment of an assault to commit murder could only be sustained by proof that the plaintiff in error made an attempt to kill Dixon under such circumstances that, had the attempt been successful, the killing would have been murder. An intent to commit

murder is the gist of the offense of an assault to commit murder, and it must be such an assault as, if death had ensued, the party charged would have been guilty of the crime of murder. Hopkinson v. People, 18 Ill. 264; Crosby v. People, 137 Ill. 325, 27 N. E. 49; Dunn v. People, 158 Ill. 586, 42 N. E. 47.

Instructions Nos. 3 and 4 given in behalf of the people read as follows: "(3) It is not necessary to constitute an intent to murder that the party charged shall have brooded over it or have entertained it for any considerable time. It is sufficient if at the instant of the assault he intended to kill the party assaulted, or it will be enough if he is actuated, in making the assault, by that wanton and reckless disregard of human life that denotes malice, and the assault is likely to kill. (4) The law implies malice from the deliberate and intentional use of a deadly weapon. Malice is always presumed where one person deliberately injures another." We think these instructions ought not to have been given. The phraseology of instruction No. 3 is such that the jury could hardly fail to receive the impression that the court regarded the plaintiff in error as the assailant. The instruction seems to proceed upon that as an established fact. The state of the proof upon that question demanded that the minds of the jurors should have been left free to act on the evidence, and determine for themselves who was the assailant. Nor it is true, as stated in this instruction, that it is sufficient to constitute an intent to murder that the pary charged intended at the instant of the assault to kill the party assaulted. If Dixon was the assailant, and the plaintiff in error was acting in self-defense in firing the shot or shots, though he shot with intent to kill, yet the law would not infer that he was actuated with an intent to murder. If the plaintiff in error at the time of firing the shot was not in good faith acting in self-defense, but was actuated by a malicious intent to murder Dixon, then it was immaterial whether he had formed the murderous intent previously and brooded over it, or that he formed the intent at the instant of firing the shot; but that he intended, when he fired the shot, to kill Dixon, is not sufficient to establish that the intent was malicious and murderous, for that would be to say he could not intentionally take the life of Dixon in self-defense without being guilty of murder. One may in selfdefense intentionally kill another, and not be guilty of murder. The doctrine of the instruction is incompatible with the law of selfdefense. Furthermore, an intent to kill may be formed upon a sudden heat of passion arising from a provocation which, in law, would be sufficient to make the killing but manslaughter; and if, in such case, death did not ensue, the party charged with an assault to murder could not be convicted of that crime. An intent to kill may not be an intent to commit murder, but to take the life

of another in self-defense, or upon that sudden heat of passion which reduces the crime of killing to manslaughter. Nor does the law always imply malice from the deliberate and intentional use of a deadly weapon, as the jury were advised by instruction No. 4. Malice aforethought is incompatible with the taking of human life in self-defense, yet a man may deliberately and intentionally use a deadly weapon to protect himself, in self-defense. In Friederich v. People, 147 Ill. 310, 35 N. E. 472, the trial court instructed the jury that "the use of a deadly weapon in making an assault will be presumed to be with felonious and malicious intent, unless a different intent be proved," and in condemning the instruction it was said (page 315, 147 Ill., and page 473, 35 N. E.): "Malicious intent is a necessary element of the crime of assault with intent to commit murder, for, if the killing would have been less than murder if death had resulted, the act cannot be deemed an assault with intent to commit murder. Malicious intent must therefore be proved. It is true that it need not be done by direct testimony, and may, under certain circumstances attending the act, be presumed, but not from the mere fact that a deadly weapon was used. This instruction entirely ignores the circumstances under which the weapon was used. It unqualifiedly attaches to the 'use of a deadly weapon in making an assault' the presumption of a felonious and malicious intent, whether deliberately used or upon a sudden heat of passion. * * This instruction authorized the jury to find the felonious intent whether so done or not. throws into the scale, against the defendant, a presumption which the law did not authorize." It was for the jury to determine, upon consideration of all the evidence, whether in firing the shots the plaintiff in error, though he deliberately and intentionally used a deadly weapon, was actuated with a malicious intent to murder Dixon, or whether, even though he intended to kill, he was moved to do so from motives of self-defense, or from a sudden heat of passion engendered by a provocation of the kind and character which, in law, operates to reduce a homicide from murder to manslaughter.

**

It

Instruction No. 10 given in behalf of the people may have operated to mislead the jury. It reads as follows: "The court instructs the jury that no words of provocation or threats whatever by witness Joseph Dixon would justify an assault, if any, by the defendant, Jasper Hammond, if said words or threats were unaccompanied by any acts of the said Joseph Dixon that would cause a reasonable and prudent man to believe that his life was in danger, or that he was about to receive great bodily harm, and that he could not escape therefrom without taking the life of the said Joseph Dixon, or doing him great bodily injury." The ancient doctrine of the common law that the right of self-defense did not arise until every ef

fort to escape, even to retreating until an impassable wall or something of that nature had been reached, has been supplanted in America by the doctrine that a man, if unlawfully assaulted in a place where he has a right to be, and put in danger, real or reasonably apparent, of losing his life or receiving great bodily harm, is not required to endeavor to escape from his assailant, but may stand his ground and repel force with force, even to the taking of the life of his assailant, if necessary, or in good reason apparently necessary, for the preservation of his own life, or to protect himself from receiving great bodily harm. 2 Whart. Cr. Law, § 1019; Beard v. U. S., 158 U. S. 550, 15 Sup. Ct. 962, 39 L. Ed. 1086. The word "escape," as a verb, according to Mr. Webster, may mean "to fiee from"; "to get out of the way of"; "to hasten away," etc.; and as a noun, "the act of fleeing from danger," etc. It is not necessary to the right of self-defense that the party having otherwise the right to exercise it cannot "escape" the danger by fleeing from an assailant.

We may here appropriately notice an error which resulted from the refusal of the court to give the following instruction asked by the plaintiff in error: "An assault with intent to kill may be defined as an attempt made by one person upon the life of another under such circumstances that, if the attempt so made should result in the death of the person assaulted, the person committing the assault would be guilty of deliberate murder; and, to sustain a conviction under such a charge, the proof of such facts must be made to the exclusion of every reasonable doubt in the minds of the jury, otherwise you must acquit of that charge." The circumstances attendant upon a homicide may be such that the act is neither justifiable nor excusable, and still not be murder; that is, it may have been under such provocation and heat of passion that the killing amounted only to manslaughter. If the circumstances are such that if death ensued the killing would only be manslaughter, the assailant, if death did not ensue, could not be guilty of an assault with intent to murder. Hopkinson v. People, supra; Crosby v. People, supra. It was the province of the jury to settle the conflict in the evidence, and determine from the attending facts and circumstances whether the defendant acted in self-defense, or whether, if not in self-defense, the circumstances of the assault were such that, had Dixon been killed, the killing would have been murder or manslaughter or justifiable homicide. If his plea of self-defense should be found good, he should be acquitted; if not good, he may be found guilty of an assault to commit murder, to do a bodily injury, or a simple assault.

The errors in advising the jury as to the rules of law applicable to the facts disclosed by the evidence may have operated to produce the verdict and judgment of conviction of an assault with intent to murder. The

1. A servant was required by defendant's superintendent to remove certain "bosh plates" inserted in the walls of a blast furnace while the blast was on, though it had been customary to remove such plates only when the blast was off, aud there was no pressure thereon. On the plates being removed, a stream of fire, coke, and gas was forced from the aperture by the pressure, and plaintiff was severely burned. Held, that the question of defendant's negligence was for the jury.

2. Where plaintiff was injured while he and W., fellow servants, were attempting to remove a bosh plate from a steel furnace, under the directions and orders of defendant's su perintendent, who was present, an objection that the negligence, if any, was the negligence of W. in failing to notify other servants to cease striking on a bar against the plate, which the superintendent was ordering them to continue, was not well taken.

3. Where the examination of a witness as a whole showed that he was permitted to state, and did state, his opinion on the subject inquired of, the refusal of the court to permit him to answer a question asking him for his "expectation" on such subject was not reversible error.

Appeal from appellate court, Second district.

Action by Stephan Sitar against the Illinois Steel Company. From a judgment in favor of plaintiff, affirmed by the appellate court (98 Ill. App. 300), defendant appeals. Affirmed.

Garnsey & Knox and William Duff Haynie, for appellant. Donahoe & McNaughton, for appellee.

BOGGS, J. This was an appeal from the judgment of the appellate court affirming the judgment, in the sum of $1,700, awarded the appellee in an action in case instituted by him against the appellant company in the circuit court of Will county. The appellee, an employé of the appellant company, together with one Harry Walsh, a pipe fitter, and others, also employés of the appellant company, was engaged, on the 22d day of May, 1899, in removing what is known as a "bosh plate" from one of the furnaces of the appellant company. The plate was removed while the blast or pressure was in the furnace. A stream of fire, coke, and gas was forced out of the aperture by the pressure from the blast. Walsh, who stood nearer the furnace than the appellee, and the appellee, were burned and injured. Walsh subsequently

3. See Appeal and Error, vol. 3, Cent. Dig. §§ 4134, 4195, 4200, 4201.

case.

died from his injuries, and his administrator, one John McFadden, brought an action against the appellant company in the circuit court of Will county to recover damages, under the statute, for the benefit of the next of kin of the deceased. He recovered a judgment in the circuit court, and the same was affirmed in the appellate court and afterwards in this court. Steel Co. v. McFadden, 196 Ill. 344, 63 N. E. 671. In that case and in this a motion was made, at the close of all the testimony, for an instruction directing a peremptory verdict for the appellant company. The motion was denied in each In the McFadden Case, which was argued orally in this court by both parties, we fully considered the insistence the court erred in denying the motion, and reached the conclusion the motion was properly denied, for the reason the evidence tended to establish that Walsh was in the exercise of ordinary care, and that the appellant company was negligent in ordering the workmen to work at the plate while the blast was on, and that the injury was not occasioned by any risk assumed by the workmen, but by the negligent acts of the employer. The pleadings in the two cases were not different in any material aspect. The facts disclosed upon the trial of the cases and the grounds of the motions for peremptory verdicts were the same. The facts are recited at length in the McFadden Case. We hold here, as in that case. that the trial court correctly refused to direct a verdict for the appellant company.

It is urged that if there was any negligence to which the injury was due, it was that of Walsh in failing to observe and report to Conlon, the superintendent of the force of men then in the employ of the appellant company, if the plate was being loosened by the efforts to remove it, and that Walsh was a fellow servant of the appellee. In the case brought by McFadden, the administrator of Walsh, we found that Walsh was in the exercise of ordinary care, and that the injury to the workmen resulted from an improper and negligent order given by the superintendent, Conlon, to remove the bosh plate without directing the blast to be entirely withdrawn. As to this feature of the case, the evidence in the two cases is not different. Conlon did not bear the relation of fellow servant to appellee, but occupied a position of superiority.

No error reversible in character occurred in the rulings of the court as to the admissibility of the opinion or "expectation" of the witness James, for, when all of the answers of the witness are considered together, it appears he was permitted to state, and did state, his opinion or his "expectation" on the point in question.

There is no complaint as to the action of the court in giving or refusing instructions to the jury.

The judgment is affirmed. Judgment affirmed.

(199 III. 9) CHICAGO CITY RY. CO. v. FENNIMORE.

(Supreme Court of Illinois. Oct 25, 1902.)

STREET RAILWAYS-PEDESTRIANS - INJURIES -HEADLIGHT-INSUFFICIENCY-NEGLIGENCE -QUESTION FOR JURY-LOOK AND LISTEN RULE TRIAL-INSTRUCTIONS CREDIBILITY OF WITNESSES-APPEAL-SUPREME COURT→ JURISDICTION SCOPE OF REVIEW - SUFFICIENCY OF EVIDENCE-EXCESSIVENESS OF VERDICT.

1. The amount of damages sustained by plaintiff in an action for injurie is a question of fact, and, where a verdict claimed to be excessive is sustained by the appellate court, it cannot be reviewed by the supreme court on that ground.

2. An objection in an action for injuries that the verdict sustained by the appellate court is against the evidence cannot be considered by the supreme court.

3. Where plaintiff was injured by being struck on a dark night by a street car while crossing a street behind a car on another track, which had just passed, and there was evidence that the headlight on the car was insufficient and could not be seen more than a half a block, and that the car passed over the crossing at a high rate of speed without sounding a bell or giving other signal to warn pedestrians of its approach, there was sufficient evidence of defendant's negligence to entitle plaintiff to go to the jury.

4. Plaintiff was injured by being struck by a street car running at a high rate of speed, without a sufficient headlight, at a crossing. She looked for a car when she came out of her house, less than a block from the crossing, aud again as she started to walk diagonally across the street, between the curbstone and the east rail of the east track, where she waited for a train going in the opposite direction to pass her, and saw no car coming from thei other direction. Held, that she was not guilty of contributory negligence, as a matter of law, in not looking a third time, just before she started to cross the track on which she was injured.

5. Where, in an action for injuries, the court charged, at defendant's request, that plaintiff could not recover unless it was shown that she was exercising ordinary care, the omission of the element of plaintiff's care from an instruction authorizing a recovery by her under certain contingencies was not error.

6. An instruction that while the burden of proof is on the plaintiff, and it is for her to prove her case by a preponderance of the evidence, still, if the evidence preponderates in plaintiff's favor, although but slightly, it would be sufficient for the jury to find the issues in her favor, was correct.

7. In an action for injuries, an instruction that, in estimating plaintiff's damages, it will be proper to consider the effect of the injury upon the plaintiff, the use of her body and limbs, and her ability to pursue any ordinary trade or calling, if these will be affected by the injury complained of, and also the bodily pain she sustained, if any, and all damages, if any, which the jury find from the evidence to be the direct result of the injury complained of, was proper.

8. Where the proposition embodied in a requested instruction was fully covered by other instructions given, a refusal of the request was not error.

9. Where the court charged that, if any witness willfully swore falsely to any matter material to the issues, then the jury were at liberty to disregard his entire testimony, except in so far as it had been corroborated, etc., the court was not required to charge a request that a witness could be impeached by showing that he had made contradictory statements on material points on former occasions.

Appeal from appellate court, First district. Action by Jennie Fennimore against the Chicago City Railway Company. From a judgment in favor of plaintiff, affirmed by the appellate court (99 Ill. App. 174), defendant appeals. Affirmed.

This is an action in case, brought in June, 1895, by the appellee against the appellant railway company to recover damages, sustained by her, for a personal injury. She charges in her declaration that she was struck by one of appellant's cable trains at the corner of Forty-Eighth and State streets, in the city of Chicago, on the night of April 30, 1895. The trial in the court below resulted in verdict and judgment in behalf of appellee for the sum of $2,250. An appeal was taken to the appellate court, and the appellate court has affirmed the judgment. The present appeal is prosecuted from such judgment of affirmance. The material facts are thus stated by the appellate court: "The injury happened on the tracks of appellant on State street at Forty-Eighth street. At that point there was a double track; the east one being used for north-bound cable trains, and the west one for trains south-bound. Appellee lived on the east side of State street, about midway between Forty-Seventh and Forty-Eighth streets. On the evening in question she left her home to go to Englewood, which lay southward, and she desired to take a south-bound train. Coming to the sidewalk, she looked north for an approaching train, but, seeing none, she walked along on the sidewalk on the east side of the street southward to Forty-Eighth street. There she started to cross State street to reach the west side of the street, in order to get in the proper place to take a south-bound car. In doing so, she says she walked cater-cornered (presumably, from the northeast corner of Forty-Eighth and State streets). Just before reaching the east or north-bound track, a north-bound train came along, and she stopped to let it pass. It went by at the usual rate of speed, without stopping. Just before or as it passed her, she looked again in the direction of Forty-Seventh street for an approaching train, but saw none; and, as soon as the north-bound train passed, she stepped in behind it, and crossed the track on which it was running, and was about to step onto the south-bound track, when she was struck by the grip car of a south-bound train, and injured in the manner complained of."

Wm. J. Hynes and Watson J. Ferry (Mason B. Starring, of counsel), for appellant. James C. McShane, for appellee.

MAGRUDER, C. J. (after stating the facts). Counsel for appellant say in their brief: "The grounds upon which appellant relies for a reversal of the judgment herein are (1) that the verdict is against the evidence; (2) error in the giving of improper, and the re

fusal to give proper, instructions to the jury; (3) that the verdict is excessive."

1. The statement that the verdict is excessive, is, of course, merely another form of stating that the damages are excessive. We have frequently held that the amount of damages sustained by the plaintiff in an action at law is a question of fact, which is not open for consideration in this court, under the statute. Railroad Co. v. Bode, 150 Ill. 396, 37 N. E. 879, and cases cited; Railway Co. v. Walsh, 157 Ill. 672, 41 N. E. 900.

2. The objection that the verdict is against the evidence is not an objection that can be entertained by this court. Under this objection, however, and as a part of it, appellant claims that the trial court erred in refusing, at its request, to give to the jury a written instruction to find the issues for the defendant. It has often been said by this court that a case ought not to be taken from the jury if there is evidence tending to sustain the cause of action. Railway Co. v. Johnsen, 135 Ill. 641, 26 N. E. 510; Railway Co. v. Walsh, supra. There is evidence in the record tending to establish the cause of action set up in the declaration.

In order to entitle the plaintiff to recover in an action of this kind, it must appear that the defendant has been guilty of such negligence as produced the accident or injury, and that the plaintiff at the time of the accident was in the exercise of ordinary care for his or her safety.

In the first place, the evidence tends to show that the appellant was guilty of such negligence as produced the injury complained of. The grounds of negligence set up in the declaration are that at the street crossing where the accident occurred, and at the time of its occurrence, to wit, at the hour of 8:30 o'clock in the evening, and while it was dark, the appellant was propelling the train of cable cars which inflicted the injury at au unreasonable rate of speed, and without ringing a bell as a warning of its approach, and without maintaining a proper and suitable headlight upon the forward car, which struck the appellee. The evidence tends very strongly to show that whatever headlight there was was dim in its character, and insufficient to enable a person standing at even a short distance ahead of the train to see its approach upon a dark night. The appellant's gripman testifies that, when the train in question was going north, he discovered when it reached Fortieth street that the chimney of the lamp supposed to furnish the light was broken, and that he was obliged to turn the light down. He says: "The chimney was toppled over in the top a little. It could not fall in any way. It was broke." Some six or seven other witnesses testify as to the dimness of the headlight, and that the chimney of the lamp was either broken, or the light turned down too low. They say that the light could not be seen plainly, inasmuch as it was filled with smoke on the inside.

The witnesses differ as to the distances at which the light could be seen as the train approached. Some of them say that the light was so dim as to make it impossible to see the approach of the train at the distance of half a block. Other testimony shows that it was impossible to see the headlight even at a less distance than half a block, and at a distance not greater than the width of the street or crossing. As the evidence was conflicting in regard to the character of the headlight, it was a matter to be determined by the jury, and was properly submitted to them under the instructions of the court. "Where the cars are operated at night, a headlight should be kept, the bell constantly sounded, and other means used to warn those who may happen to be on the track." 23 Am. & Eng. Enc. Law (1st Ed.) p. 1023; Rascher v. Railway Co., 90 Mich. 416, 51 N. W. 463, 30 Am. St. Rep. 447; Johnson v. Railroad Co., 20 N. Y. 65, 75 Am. Dec. 375; Little v. Railway Co., 78 Mich. 205, 44 N. W. 137; Button v. Railroad Co., 18 N. Y. 248. In Burling v. Railroad Co., 85 Ill. 18, this court said: "It is a high degree of negligence to run trains without a headlight on a night so dark as this was." In the case at bar there is evidence not only tending to show that the night was dark, but also that it was a foggy night. In Railway Co. v. Alsop, 176 Ill. 471, 52 N. E. 253, 732, this court again said: "It is a high degree of negligence to run a train without a headlight on a dark night, as this was shown to be." There was some evidence tending to show that no bell was rung, but, as the evidence upon this subject was conflicting, it also was properly submitted to the jury to determine. The proof tended to show that the train was traveling at the rate of 12 miles an hour, and that that was its usual rate of speed. It may be true, as is claimed by counsel for the appellant, that the rate of speed at which the train was going was not evidence of negligence per se. But it is to be remembered that this accident occurred at a street crossing in a large and populous city, and in the nighttime. Booth, in his work on Street Railway Laws (section 306), says: "A greater degree of watchfulness is necessary at street intersections, especially at crossings which are usually thronged with vehicles and persons on foot, and at curves in the street or route." In the case at bar the evidence shows that when the train which struck the appellee was at the crossing of Forty-Seventh and State streets, one block north of Forty-Eighth street, a wagon passed directly in front of the train in question. This necessarily caused a slackening of the speed of the train at that point, and therefore it must have been hurried into a greater rate of speed as it passed southward to the crossing of Forty-Eighth and State streets. It is the doctrine of this court that drivers, gripmen, and motormen of street cars are obliged to exercise a more exacting attention when they