Caviness v. Rushton. CAVINESS V. RUSHTON. (101 Ind. 500.) Contract-promise to pay by will. An instrument reading thus: "I promise Emily Caviness to give her twe thousand dollars at my death to take care of her children with, which she claims of my estate. She has been in my family nineteen years and a faithful servant and it is my will to her," is not a promissory note, but is a valid and enforceable contract. THE IE opinion states the case. The defendant had judgment J. V. Hadley, E. G. Hogate and R. B. Blake, for appellant. ELLIOTT, J. The appellant in the first paragraph of her complaint set forth the following instrument: "October 13, 1882. "I promise Emily Caviness to give her two thousand dollars at my death to take care of her children with, which she claims of my estate. She has been in my family nineteen years and a faithful servant, and it is my will to her." And alleged that it was executed by William R. Rushton in his life-time, and that Rushton died some time after the execution of the instrument, and that the appellee is the administrator of his estate. We do not think the instrument declared on can be regarded as a promissory note. On its face it appears to be a voluntary promise to make a testamentary disposition of property. It does not appear to be a promise to pay money at a certain time, absolutely and at all events. The words in the first clause of the instrument prima facie, express a promise to make a gift, and the concluding words are indicative of an intention to make a testamentary disposition of property. The contention of appellant that the instrument is a promissory note cannot be maintained without doing violence to the language of the instrument. The instruments in Harmon v. James, 7 Ind. 263, and Johnston v. Griest, 85 Ind. 503, were very similar in their tenor and effect to the one now before us, and it Caviness v. Rushton. was held that they were not promissory notes. As the first paragraph of the complaint proceeds upon the theory that the instrument is a promissory note, it is bad. The third paragraph of the complaint alleges that the appellant, at the special instance and request of the appellee's intestate, performed work and labor for him for nineteen years; that "on the 13th day of October, 1882, she had a settlement with William R. Rushton, then in life, for the services by her performed, and the amount found to be due was $2,000, and the said Rushton then agreed to leave her by will the sum so found due her for services, and executed to her a written agreement. The written agreement set forth in this paragraph is the same as that set out in the first paragraph. It is also alleged that Rushton died without a will. We are unable to perceive any infirmity in this paragraph of the complaint. A promise supported by a valuable consideration is well pleaded, and the case is therefore unlike that of a voluntary promise to make a gift. The services were rendered in accordance with a precedent request, and after they were performed, a settlement was had and their value agreed upon. Not only were all the elements of a valid contract present, but there was a full recognition, by the settlement, of the right to compensation, and an agreement as to the amount. What the parties have thus agreed upon and adjusted, the courts have no right to disturb. As there was a precedent request to render the services, and as they were rendered upon that request, the case in hand is not within the rule laid down in the cases cited. The manner in which the intestate promised to make the payment cannot deprive the appellant of her right to recover the value of the services rendered by her at his precedent request. The only difference between this case and that of an ordinary promise to pay for services is in the stipulation as to the time and manner of making payment. A promise, founded upon a valuable consideration, to make provision by will is a valid contract, and an action will lie for its breach. An English author says: "It is well established that a man may validly bind himself or his estate by a contract to make any particular disposition (if in itself lawful) by his own will." Pollock Cont., § 308. This is the doctrine of this court. Bell v. Hewitt, 24 Ind. 280. The case in hand is plainly distinguishable from Moore v. Stephens, 97 Ind. 271, for here there was a valuable consideration, a precedent Chicago and Eastern Illinois Railroad Company v. Boggs. request, and an express contract; while in the case cited there was no valid contract, but simply an ineffectual attempt to make a testamentary disposition of property. It was proper to show the consideration of the intestate's promise, and when it was shown to be a valuable one, yielded upon a precedent request, a cause of action appeared. It was not necessary that the consideration should affirmatively appear in the written instrument; it was sufficient to show that there was a precedent request, and that the services were performed pursuant to this request. These facts make it appear that there was a valid contract, and not a mere voluntary promise to make a testamentary gift. If there had been no consideration for the promise, or if it appeared that the promise was simply to make a gift, then of course no action could be maintained. [Minor point omitted.] For the error in sustaining the demurrer to the third paragraph of the complaint the judgment must be reversed. Judgment reversed. CHICAGO AND EASTERN ILLINOIS RAILROAD COMPANY v. Boggs. (101 Ind. 522.) Railroad-negligence — successive trains at highway crossing. It is negligent in a railroad company to run trains so near together at a highway crossing as to make the statutory signals unavailing to warn travellers on the highway.* A CTION for personal injuries by negligence. The opinion states the case. The plaintiff had judgment below. J. Henry, W. Armstrony, J. Jump and C. W. Ward, for appellant. C. V. McAdams, J. G. Pearson, J. C. Sawyers and O. B. Gibson, for appellee. ELLIOTT, J. On the morning of the 16th of July, 1883, the appellee and her husband were driving along a highway which the *See Ormsbee v. Boston & Prov. R. Co., ante, 354. VOL. LI 96 Chicago and Eastern Illinois Railroad Company v. Boggs. appellant's track crossed. As they neared the crossing, they heard a locomotive and train approaching, and they stopped until that train had passed. As soon as that train had cleared the highway, the appellee's husband started the horses into a brisk trot, and attempted to cross the track, but the wagon was struck by a train which was following the one that had gone over the crossing, and the appellee was thrown out and seriously injured. There is a sharp conflict in the evidence as to how closely the rear train was following the leading one, but there is evidence fully warranting the inference that there was only a very short distance between them, and that there was an interval of a very few seconds only between the time the one left the crossing and the time the other ran upon it. There was evidence tending very strongly to show that during the summer the growing grain, the rank weeds and luxuriant foliage of trees and bushes obstructed the view of the crossing from the highway. The track runs through a deep cut and makes a curve before reaching the crossing, and these, combined with other things, made it very difficult to see an approaching train. The appellee and her husband were old persons, the former sixty-five years of age and deaf in one ear. They were both well acquainted with the crossing, and had very frequently driven over it. The appellee testified that she and her husband did look and listen for approaching trains as soon as they reached a point where they could see, but that they neither saw nor heard the train which ran into the wagon until they had driven upon the track. The train which first passed the crossing was composed of seventy-three cars, and was about one-half mile in length. There was a direct conflict as to whether the whistle was blown or the bell sounded by the persons in charge of the engine which struck the appellee, and there was also much evidence tending to show that the clatter and noise of the first train was so great that it would have drowned the sound of the bell or whistle, even if the signals required by law had been given by the hindmost train. The statute requiring signals to be given at a designated distance before reaching the highway crossing is intended to compel railroad companies to sound warnings of the approach of trains, and is not intended, as appellant assumes, merely to warn travellers that a railroad track crosses the highway. The duty is imposed by law, and its breach constitutes negligence. It is a familiar principle that a breach of duty constitutes actionable negligence, and it is Chicago and Eastern Illinois Railroad Company v. Boggs. upon this principle that the adjudged cases, without conflict, declare that the omission to give the signals required by statute constitutes such negligence as renders the company liable to one who, without fault on his part, has suffered injury as the result of that negligence. It is hardly necessary to quote from the authorities upon this subject, yet for the purpose of setting the question in full view and throwing upon it a clear light, we do quote from some of the text-books. In a recent work it is said: "When by law, bell ringing and sounding the whistle are required in approaching and passing over public road crossings, the omission thereof amounts to actual negligence on the part of the company." 2 Rorer Rail. 1006. Another author says: "The company is liable for injuries caused by its omission of these duties, when imposed by statute The omission is calculated to mislead the traveller, and to assure him that the coming of the train is not imminent; and it is evidence of negligence." Pierce Rail. 350. In speaking of duties imposed by statutes upon railroad companies, it was said in another text-book, that "These regulations being clearly intended for the protection of travellers, it would seem natural to suppose that any violation of them should be deemed culpable negligence, in an action brought by a traveller." Shearm. & Redf. Neg., § 484. Wharton says: "Even where a statute is in force requiring the use of a bell or steam whistle or other signal at a crossing, while the omission to comply may, under the statute, create a prima facie case against the company, it is a good defense that the plaintiff saw the train, and recklessly exposed himself to the collision. When however the injury results from the omission of the signal, then the railroad is liable." Whart. Neg., § 804. In the case of Pittsburgh, etc., Ry. Co. v. Martin, 82 Ind. 476, it was said, in speaking of our statute: "While such a law existed, a violation of it was undoubtedly a failure to give reasonable, proper and timely notice. The signal required by the law not being given, the view being obstructed, and the plaintiff not being hard of hearing, he had no reason to suppose that the train was within eighty rods of the crossing; he was misled by the defendant's negligence in omitting the proper signal; he was not guilty of negligence in assuming, in the absence of any indication to the contrary, that the company was obeying the law, and that no engine was advancing toward the crossing within a distance of eighty rods." In the recent case of Cincinnati, etc., Ry. Co. v. Hiltzhauer, 99 Ind. 486, the general subject was discussed, |