Syllabus. Opinion of the Court. THOMAS RICHTER .v. WILLIAM SCHROEDER et al. Filed at Ottawa May 19, 1884. RECEIVERSHIP-care as to expenses-over-payment of attorney's fee. Funds in the hands of a court for administration should be jealously watched over, to guard against their absorption by expenses of litigation. The court should not direct a receiver to pay his attorney, for his professional services and outlays, any greater sum than the attorney asks in his petition; and it is error to give him more than he claims he ought to have. APPEAL from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. MURRAY F. TULEY, Judge, presiding. Mr. W. B. CUNNINGHAM, and Mr. ADOLPH MOSES, for the appellant. Mr. H. H. ANDERSON, pro se. Mr. CHIEF JUSTICE SHELDON delivered the opinion of the Court: Thomas Richter having filed his bill in chancery, against William Schroeder and certain insurance companies, to enforce the payment to him of insurance moneys claimed to be due to him under a mortgage made by Schroeder, which provided for the keeping of the mortgaged premises insured, an agreement was entered into between the parties for the appointment of a receiver, who employed H. H. Anderson, Esq., as his attorney, to institute suits against the insurance companies. There resulted considerable litigation, and Mr. Anderson afterward presented his petition in the case to the court, for an allowance for his services. Reference was made to a master to inquire into the value of the services, and on report made the court entered an order for the payment to Opinion of the Court. Anderson of $1007.10, which order was affirmed on appeal to the Appellate Court for the First District, and Richter appeals to this court. In his petition the petitioner gives a statement, in detail, of the services he had rendered, concluding as follows: "That petitioner has expended, for costs and expenses, $150, and prays for an order upon said receiver to pay him $650." Before the master the petitioner gave testimony, as follows: "My net outlay is $157.10. I ask on account $650, though I think I am entitled to more. I ought to be paid that amount And on cross-examination he says: "I have not made any definite charges in the case. I simply stated to you what my services have been, and I intend to leave it to the evidence of lawyers, and the judgment of the master and court, in regard to what my services have been worth. I ought to have the money I paid out, and $500 fees." on account." Funds in the hands of a court for administration should be jealously watched over, to guard against their absorption by expenses of litigation. Allowance to a claimant of more than he thinks he ought to have, and more than he asks for, should not, we think, be approved. The sum of $657.10,— the petitioner's own measure of the value of his services,-is all, in our opinion, that should have been allowed, although there was other testimony in the case which might have warranted the allowance of as large a sum as that ordered to be paid. Appellant makes the point that much of the litigation which arose came through the petitioner's own neglect, and that he should have nothing for his services. Upon an examination of the evidence in the case we can not say that it sustains this point made by appellant, and we are satisfied with the finding below in this regard. The judgment will be reversed, and the cause remanded. for further proceedings in accordance with this opinion. Judgment reversed. 8-110 ILL. 13a 502 0 114 7413 7 600 10 114 59a 58 10 114 59a 236 110 114 172 533 THE WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANY v. THOMAS WALLACE. Filed at Ottawa May 19, 1884. 1. NEGLIGENCE—contributory and comparative-of the degree of care required, under different circumstances. Although a railway company may omit the statutory duty of ringing a bell or sounding a whistle at a public road crossing, still a party claiming to recover for an injury in consequence of such omission of duty, must have used due care and caution. The negligence of the company does not absolve him from all care. The plaintiff in such case, to recover, is required to exercise such care as might be expected of prudent men generally, under like circumstances. 2. Where it is well known to the servants of a railway company and a person injured at a road crossing, that such place is unusually hazardous, it is the duty of both parties to use more care than at ordinary crossings where the danger is not so great. In such case the servants of the company should ring the bell and sound the whistle to the full extent of the statutory requirement. 3. If a plaintiff who is injured at a highway crossing by a railway train does omit some slight precaution for his safety, and the railway company omits all care on its part, the plaintiff will not be without remedy. If the plaintiff's negligence is slight, and that of the company, when compared with that of the plaintiff, is gross, a recovery may be had. 4. What is prudence and proper care under some circumstances may be negligence in others; and so, negligence in danger under some circumstances might be regarded as prudence under others. Each case must depend largely on its own facts. 5. SAME-former decision—omission of railway company to give signals at highway crossings. The rule laid down in Chicago and Alton R. R. Co. v. Elmore, 67 Ill. 178, in regard to the liability of a railway company for a personal injury caused by a neglect of the statutory duty of sounding a whistle or ringing a bell at public road crossings, has not been followed, but has been disregarded in subsequent cases, and that case is overruled. APPEAL from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Will county; the Hon. FRANCIS GOODSPEED, Judge, presiding. Brief for the Appellant. Messrs. SLEEPER & WHITON, for the appellant: Under the circumstances of this case the engineer and fireman were not required to slow up the train when they saw the plaintiff approaching the crossing, having a right to infer that as a man of ordinary sense he would not venture upon the track. The authorities supporting our views are numerous: Railroad Co. v. Jones, 76 Ill. 311; Railroad Co. v. Jacobs, 63 id. 178; Railroad Co. v. Austin, 69 id. 426; Railroad Co. v. Manly, 58 id. 300; Railroad Co. v. Sweeney, 52 id. 325; Railroad Co. v. Van Patten, 64 id. 510; Railroad Co. v. Bell, 70 id. 102; Railroad Co. v. Godfrey, 71 id. 500; Railroad Co. v. Goddard, 72 id. 567; Railroad Co. v. Harwood, 80 id. 88; Burling v. Railroad Co. 85 id. 18; Railroad Co. v. Damerell, 81 id. 450; Railroad Co. v. Dimmick, 96 id. 47. See, also, cases cited in Thompson on Negligence, 426. If the jury believed the testimony of Handy and Manypenny as to the ringing of the bell, then there was no possible ground of recovery by the plaintiff. They were not at liberty to disregard this testimony, and believe the simple negative, uncorroborated testimony of the plaintiff himself, that he did not hear the bell. Edler v. Achtman, 10 Bradw. 488; Haycroft v. Davis, 49 Ill. 455; Hartford Life Ins. Co. v. Gray, 80 id. 28; Evans v. George, id. 51. To recover, the plaintiff must have exercised ordinary care, such as a reasonably prudent person always will adopt for the security of his person. Railroad Co. v. Lee, 68 Ill. 580; Railroad Co. v. Johnson, 103 id. 521. The rule of comparative negligence laid down in the fourth instruction does not conform to the law as declared in Railroad Co. v. Dimmick, 96 Ill. 47, and Railroad Co. v. Johnson, 103 id. 524. The want of ordinary care is fatal to a recovery, no matter how gross the negligence of the defendant may have been. The seventh instruction completely ignores the necessity of due care on the part of the plaintiff, and attempts to sub Brief for the Appellee. Opinion of the Court. stitute in its place only slight negligence, which is a very different thing. Railroad Co. v. Harwood, 80 Ill. 88; Railroad Co. v. Johnson, 103 id. 512. Mr. C. W. BROWN, and Mr. F. BENNETT, for the appellee: The fourth instruction comes squarely within the rule of comparative negligence, drawn even as closely as it is. (Railroad Co. v. Johnson, 103 Ill. 524.) It avoids the very error complained of in that case, by not asking the jury to determine whether or not plaintiff's negligence was slight, as compared with negligence of defendant. It is sufficient to say in reference to the criticism upon the seventh instruction, that it is precisely in the language that has been approved twice by the Supreme Court. Chicago, Burlington and Quincy R. R. Co. v. Triplett, 38 Ill. 483; Chicago and Alton R. R. Co. v. Elmore, 67 id. 178. Mr. JUSTICE WALKER delivered the opinion of the Court: This was an action on the case, instituted by appellee, Wallace, against appellant, to recover for injuries claimed to have been inflicted by the servants of appellant, in the negligent management of a train on its railroad. There were three counts in the declaration, in which it was averred that appellant's servants drove an engine and train on its road over the crossing of a highway so negligently that appellee was struck and injured, and his horse was 'damaged; that no whistle was sounded or bell rung, as required by statute, nor was there the sign required by the statute placed at the crossing; also, that the company had negligently permitted high piles of dirt and other substances to remain on its right of way, so as to obstruct the view of an approaching train on the railroad, whereby appellee and his horse were struck and injured. On a trial in the circuit court the jury found a verdict in favor of appellant for $1150. A motion for a new trial was entered and overruled, and judgment rendered on |