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fireman. After the train had proceeded to a point six or seven miles from the place of work, the engine, tender and coach left the track and turned over, and a number of persons on both the engine and coach, including defendant in error, were seriously injured. The evidence tended to prove that at the place where the engine and coach left the track the ground was soft and spongy, the ties were rotten, the rails had become loose from the ties, causing loose joints, and the engineer drove the engine over this dangerous track at a speed of from forty to fifty miles per hour.

At the close of the plaintiff's case, and again at the close of all the evidence, plaintiff in error offered a peremptory instruction directing the jury to return a verdict in its favor. The refusal of the court to give this instruction at the close of all the evidence is the principal ground relied upon for reversal. In support of this assignment of error plaintiff in error contends that the proof shows that the defendant in error was riding on the engine without the knowledge, consent or permission of plaintiff in error; that he voluntarily assumed a place of danger, and that plaintiff in error therefore owed him, while riding on the engine, no duty except not to willfully injure him. It is of no consequence that the evidence fails to show any express consent or permission given by plaintiff in error to defendant in error to ride on the engine. The evidence fails to show any notice given to him, by rule of the company or otherwise, forbidding him to ride on the engine. The proof shows that the work in which defendant in error was engaged was at a place about twenty-five miles from his place of residence, and that as a part of his duties as a servant of plaintiff in error he was required to board the work-train in order to be taken to his place of work. The testimony of the defendant in error tends to show that when the worktrain reached Harwood, where he was waiting, the coach was filled and the platform of the coach was crowded with men, and defendant in error, with the permission of the

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engineer, got upon the engine and took a seat in the cab. with the fireman and engineer. His purpose in getting upon the engine was the same as though he had gotten upon the coach, viz., to be carried to his place of work. He did not get upon the engine merely for purposes of his own outside the scope of his employment, as suggested by counsel for plaintiff in error, but in order to perform a duty which he owed to plaintiff in error as its servant, and plaintiff in error was not, by reason of the fact that he had taken a place on the engine, relieved of the duty to use reasonable care in transporting him to his place of work. This duty required the plaintiff in error to use reasonable care in keeping its tracks in a reasonably safe condition and to exercise reasonable care in operating the train on which the defendant in error was riding. The evidence tends to show that it failed in its duty in each of these respects; that its track at the place of the accident was, and had been for such a length of time that plaintiff in error is chargeable with notice, in a dangerous condition, and that the work-train was driven at a high and dangerous rate of speed over this track, resulting in the overturning of the engine and coach.

Nor can it be said that by boarding the engine in order to be carried to his work the defendant in error was, as a matter of law, guilty of contributory negligence, or that he assumed the risk of injury arising out of the dangerous condition of the track and the negligent manner in which the engine was driven. In Chicago Terminal Railroad Co. v. O'Donnell, 213 Ill. 545, it appeared that the railroad company furnished a box-car attached to an engine to convey its workmen from their place of work to their homes. The car being over-crowded, some of the workmen climbed up on top of the car and sat upon the running-board of the car. As the car passed beneath a viaduct the head of one of the men on top of the car came in contact with the roof of the viaduct and he was killed. In considering the duty which, under the circumstances, the railroad company owed

the deceased, and the act of the deceased in taking his position on top instead of inside the car, we said: "It was the custom of the defendant to carry the deceased from its station near his home to his work in the morning and to return him to that station in the evening. While it may be conceded he was not a passenger, it was the duty of the defendant to furnish him a reasonably safe place in which to ride in going to and returning from his work, and if the. car was over-crowded by other workmen so that he could not ride on the inside of the car, it was not negligence per se for him to take passage to his home upon the top of the car, and it was a question for the jury to determine, from the evidence, whether the car was over-crowded, and whether the deceased was justified, by reason of that fact, in going upon the top of the car." So in the case at bar, it was a question for the jury to determine from the evidence whether the coach was over-crowded and whether defendant in error was justified, by reason of that fact, in getting upon the engine, and if the coach was over-crowded by other workmen so that defendant in error could not ride in the coach it was not negligence per se for him to take passage on the engine. In any event, the act of the defendant in error in getting upon the engine and taking his seat in the cab of the engine could relieve plaintiff in error from liability only on the ground that such act constituted contributory negligence on the part of the defendant in error. (Abend v. Terre Haute and Indianapolis Railroad Co. 111 Ill. 202.) This action was brought under the Federal Employers' Liability act, which provides that "the fact that the employee may be guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee," and the jury were so instructed.

So far as the contention that defendant in error assumed the risk is concerned, the danger arising from the operation of the train at an excessive rate of speed over a defective

track was not one of the ordinary risks incident to his employment, and as there is no proof in the record tending to show that he knew of the dangerous condition of the track and as he had no control over the operation of the engine he did not assume the risk arising from these dangers.

The court did not err in refusing to direct a verdict in favor of plaintiff in error.

Defendant in error was permitted to testify that on two occasions during the week previous to the accident he had ridden to his work on the engine and that on nearly every trip some of the workmen rode on the engine. Plaintiff in error assigns as error that the court refused to permit it to contradict this evidence. There is no basis for such contention. Elmer Wheeler, called as a witness by plaintiff in error, testified that he was a member of the section gang and that he had never seen anyone riding on the engine either going to or coming from their work. He was asked if it was customary for persons to ride on the engine, and an objection to this question was properly sustained, as it called for a conclusion. Green Blair, another witness called by plaintiff in error and a member of the section gang, testified on his direct examination that he supposed some of the workmen rode on the engine but they were not supposed to do so, and that he had never seen anyone riding on the engine. John R. Bickle, also a witness for plaintiff in error and a member of the section gang, upon his direct examination testified that during the two weeks preceding the accident he had not seen anyone riding on the engine. It is thus apparent that plaintiff in error was permitted to contradict the testimony of defendant in error regarding the practice of workmen riding on the engine.

Other complaints made by plaintiff in error concerning the alleged action of the court in excluding evidence offered by plaintiff in error are equally without any foundation in the record.

In disposing of the main contention we have disposed of most of the grounds relied upon by plaintiff in error in support of its contention that the court erred in giving and refusing instructions. Only one ground need be here further noticed. It is contended that certain of the instructions which directed a verdict in favor of defendant in error in case certain issues were found in his favor ignored the defense of assumed risk. As there was no evidence in the record tending to show that defendant in error knew or was chargeable with knowledge of the dangers which caused the accident which resulted in his injuries, plaintiff in error could not have been prejudiced by the failure to negative the assumption of risk in these instructions.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

(No. 11397. Decree affirmed.)

George Miltenberger, Appellee, vs. JACOB GLOs et al. Appellants.

Opinion filed June 21, 1917—Rehearing denied October 5, 1917.

I. REGISTRATION OF TITLE-proceedings by which recorder of Cook county has authority to make abstracts need not be proved. The proceedings by which the recorder of deeds of Cook county has authority to make abstracts for the public for hire need not be proved in order to admit in evidence an abstract of title made by such recorder, nor is it necessary to show that the bond required by statute has been filed.

2. SAME parties cannot recover costs paid for filing unnecessary appearances. Parties who have unnecessarily filed separate appearances answering an application to register title but make no attempt whatever on the hearing to show that they have or claim any title or interest in the property or are entitled to any relief, by way of reimbursement or otherwise, cannot recover costs voluntarily paid merely for the privilege of appearing and filing answers.

APPEAL from the Circuit Court of Cook county; the Hon. FREDERICK A. SMITH, Judge, presiding.

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