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St. Louis Railway Co. 152 Ill. 223, and Wabash Railway Co. v. Brown, 152 id. 484, are cited. In the former of these cases we said (p. 229): "Negligence is generally a question of fact.

There is, however, this exception to the rule: that the court may not properly say to the jury that negligence has been established as a matter of law. If the conduct of the party charged with negligence, or whose duty it is to use due care, 'is so clearly and palpably negligent that all reasonable minds would so pronounce it without hesitation or dissent,' then the court may so pronounce it by instructions to the jury.” While it is doubtless true that all reasonable minds will agree that to attempt to cross a railroad track in front of an approaching train, the gates being down, is ordinarily an act of gross negligence, yet we apprehend that the attempt might be made under circumstances where it would not necessarily be neg. ligence. The distance of the approaching train from the crossing and the speed at which it is moving would certainly be very material facts in determining the question of due care. It cannot be said that every person who attempts to cross a railroad track upon a street in front of an approaching train when the gates are down is guilty of negligence per se; and while, as we have said, it is generally an act of imprudence, yet if it is done under such circumstances as show that ordinary care is being exercised, a right of recovery for negligence on the part of those in charge of the engine is not barred. We think it was not error to refuse the instruction as asked, and the modification of it was not improper. The court could not, under all the facts proved, be required in this way to take the question of negligence from the jury.

It is next insisted that the court erred in refusing to instruct the jury to return a verdict for nominal damages, only, in case they found the defendant guilty. As we have already said, the question as to whether the damages awarded by the jury, under all the facts proved, are excessive, is one peculiarly within the province of the Appellate Court to determine. We cannot say, as a matter of law, that plaintiff was not entitled to recover substantial damages. Whether he was or not can only be determined by reviewing the evidence and determining its weight as establishing or failing to establish the facts which go to the question of damages. The court did instruct the jury, on behalf of the plaintiff, that if, from the evidence, under the instructions of the court as to the law, they found the defendant guilty, they should assess the plaintiff's damages at such a sum as they deemed fair and just compensation with reference only to the pecuniary injuries, if any, resulting from the death of the deceased to her next of kin, not exceeding the sum of $5000. That instruction, as we understand it, announced the correct rule as to the measure of damages, and properly left the jury to find the facts from the evidence. Conceding the relationship between the deceased and her children was such as no pecuniary interest in her life would be presumed, they being adults, yet there is certainly some evidence tending to prove that the children derived a benefit from her life.

The pecuniary value of that benefit was a question for the jury, and finally for the Appellate Court, and so both parties treated the case by their instructions. Defendant cannot complain of plaintiff's similar instructions. In this class of cases it is not necessary that damages be proved in dollars and cents, but having proved such kinship as raises a presumption of pecuniary loss, or offered proof of loss in cases of collateral kindred or adult children, the jury must, from age, health, etc., fix the damages sustained.

No error appearing in the record in this cause the judgment of the Appellate Court will be affirmed.

Judgment affirmed.

CHARLES ORCHARDSON

14 la 4219 la 7222

V.

AMELIA T. COFIELD et al.

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Opinion filed December 22, 1897Rehearing denied February 2, 1898.

1 14 2 3603

1. WILLS-when ability to transact ordinary business is not evidence of testamentary capacity. The ability to transact ordinary business and to understand the business in which one is engaged when making a will is evidence of testamentary capacity, unless the testator was affected with some insane delusion which influenced his action.

2. SAME-a will resulting from an insane delusion cannot be sustained. A will cannot be sustained which is the direct result of an insane delusion of the testator in regard to the person who is the object of his bounty, or in regard to his moral duty to make the will in favor of a particular individual, corporation or society.

3. SAME-belief in spiritualism as affecting testamentary capacityinsane delusions. Belief in spiritualism is not proof of insanity or want of testamentary capacity, but where, through that belief, one is led into the delusion that another is a divinity or gifted with supernatural powers, the believer is insane on that subject, and a will prompted by that delusion cannot be sustained. (Whipple v.

Eddy, 161 Ill. 114, distinguished.) 4. SAME-evidence held sufficient to sustain charge of undue influence and want of testamentary capacity. The court reviews at length the evidence and sustains the verdict of the jury setting aside the will in this contest, and holds that the evidence sustains the allegations of the bill that the will was the result of an insane delusion and was procured by undue influence.

5. MARRIAGEthe marriage of an insane person is void. The marriage of an insane person is void, and, not being good for any legal purpose, its invalidity may be shown in any court, between any parties, either during the lifetime of the parties to such marriage or after their death.

6. SAME-marriage ceremony alone does not establish the relation of husband and wife. A mere marriage ceremony does not make a man and woman husband and wife. Capacity and consent are absolutely essential, but celebration only contingently so.

7. SAME-test for determining whether a person had sufficient mental capacity to enter marriage relation. The most approved test for determining whether a person had sufficient mental capacity to enter the marriage relation is whether his mind could and did act rationally regarding the precise thing in contemplation,-marriage; not whether his conduct was wise, but whether it proceeded from a mind sane with respect to the thing done.

8. SAME--action of chancellor in annulling marriage of woman aster her death is sustained. The court reviews the evidence in the case at length, and holds it sufficient to sustain the action of the chancellor in annulling the marriage of a woman after her death, upon the ground that she was insane when the marriage ceremony was performed and so remained until her death.

9. SPECIAL FINDINGSwhen special findings in a will contest are not inconsistent with a general verdict. Special findings in a will contest that the testatrix possessed sufficient mental capacity to transact ordinary business, and to understand the business in which she was engaged when making her will, are not inconsistent with a general verdict finding that the will was not the last will and testament of the testatrix, as the conditions, as found specially, may exist and yet the testatrix not possess testamentary capacity, owing to the presence of an insane delusion.

APPEAL from the Circuit Court of Adams county; the Hon. OSCAR P. BONNEY, Judge, presiding.

JOHN H. WILLIAMS, and JESSE B. BARTON, for appellant:

Decedent was not an insane person, in the purview of the statutes, at the time of her marriage with appellant, and was therefore not incapable of contracting a marriage. Whipple v. Eddy, 161 Ill. 114; Taylor v. Pegram, 151 id. 106; Burt v. Quisenberry, 132 id. 385; Halbert's Will, 37 N. Y. Sup. 757; Smith's Will, 52 Wis. 513; Brown v. Ward, 53 Md. 376; Guild v. Warne, 149 Ill. 105.

A marriage voidable only cannot be avoided after the death of either party. Schouler on Domestic Relations, 24; Bonham v. Badgley, 2 Gilm. 622.

Undue influence to avoid an act or nullify a will must be a wrongful influence, and must have the effect of completely subjugating the mind of the actor or testator, so that he or she was incapable of withstanding it or of acting independently of it. William's Will, 15 N. Y. Sup. 828; 1 Bishop on Mar., Div. & Sep. secs. 595-601; Kern v. Kern, 51 N. J. Eq. 574; Hill v. Barnes, 158 Ill. 314; Massey v. Huntington, 118 id. 80; Guild v. Hall, 127 id. 523; Bevelot v. Lestrade, 153 id. 625; Wilbur v. Wilbur, 129 id. 393; 138 id. 446; Rutherford v. Morris, 77 id. 412; Pooler v. Cristman, 145 id. 405; Sturtevant v. Sturtevant, 116 id. 310; Dickie v. Carter, 42 id. 379; Yoe v. McCord, 74 id. 14; Kimball v. Cuddly, 117 id. 213; Mitchell v. Mitchell, 43 Minn. 73; Will of Snelling, 136 N. Y. 515; Mackall v. Mackall, 135 U. S. 167; Storey's Will, 20 Ill. App. 183; Salisbury v. Aldrich, 118 Ill. 199; Brown v. Mitchell, 75 Tex. 9; Carpenter v. Bailey, 94 Cal. 406; Sheldon's Will, 16 N. Y. Sup. 454; Schmilt v. Schmidt, 47 Minn. 451.

JAMES N. SPRIGG, GOVERT & PAPE, and WILLIAM L. VANDEVENTER, for appellees:

The terms "insane person" and "unatic" include every idiot, non compos, lunatic, insane or distracted person. Rev. Stat. chap. 131, sec. 1, clause 6.

No insane person or idiot shall be capable of contracting marriage. Rev. Stat. chap. 89, sec. 2.

A void marriage is good for no legal purpose, and its invalidity may be shown in any court, between any parties, either in the lifetime of the parties thereto or after their death. Cartwright v. McGown, 121 Ill. 396; Gathings v. Williams, 44 Am. Dec. 54; Unity v. Inhabitants, 76 Me. 419; Bell v. Bennett, 73 Ga. 784; 14 Am. & Eng. Ency.of Law, 487, et seq.; Powell v. Powell, 18 Kan, 371; Rawdon v. Rawdon, 28 Ala. 565; Foster v. Means, 1 Speers' Eq. 509; Crum v. Morgan, 3 Ired. Eq. 91; Browning v. Reane, 2 Phillm. 69; Parker v. Parker, 2 Lee, 582; Er parte Turing, 1 V. & B. 140; Waymire V. Jetmore, 22 Ohio St. 271; Harrod v. Harrod, 1 K. & J. 4; Clement v. Mattison, 3 Rich. 93; Jenkins V. Jenkins, 2 Dana, 102; Jacques v. Public Admr. 1 Bradf. 499; Middleborough v. Rochester, 12 Mass. 363; Wightman v. Wightman, 4 Johns. Ch. 313; 4 Blackstone's Com. 458; Ward v.Delaney, 23 Miss. 410; Keyes v. Keyes, 22 N. H. 553; Christy v. Clarke, 45 Barb. 529; 1 Scribner on Dower, (2d ed.) pp. 123, 124; 1 Bishop on Mar., Div. & Sep. secs. 258, 548, 600, 622, 645.

One not competent to carry on ordinary transactions of life is not competent to contract marriage. 3 Wait's Actions and Defenses, 629; Ward v. Delaney, 23 Miss. 410; Cole y. Cole, 5 Sneed, 57; In re Spencer, 96 Cal. 488.

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