Vadbouker et al. v. Gravelot.

LACEY, J. This was a suit in trespass to personal property. Plea not guilty and judgment of $175 against all the above named appellants. It appears that appellee about the 9th or 10th of July, 1879, started to Kansas on a visit with his family, putting his goods, consisting of a billiard table, beer faucet and saloon furniture and some household goods, in boxes, leaving them in the store and care of Mr. Young, giving Young the key to the house. Hearing the goods were taken, appellee came back and found the goods were taken to Clifton and sold.

There was no plea of justification interposed and it only remained for appellee to show the trespass. It is claimed as one ground, and the main one, that there was no evidence. against appellant, Gideon A. Colby, connecting him in any way with the taking or selling the goods.

It appears from the evidence that the appellant Vadbonker had sued out a writ of attachment against appellee and placed it in the hands of appellant Pearce, who was a constable to execute. Only one witness was sworn, Henry C. Worfel, who testified to anything against appellant Colby. He testified that he saw Pearce take the goods out of the house, and saw the house broken open. The witness had never spoken to Colby about the matter. Pearce wanted witness to go with him, said he was going to take the goods out of the house. This witness testified that at the time the goods were taken out of the house by Pearce, there was present Mr. Pearce, Mr. Colby, Mr. Louis, and he didn't know but there was some one else.

The witness further testified that he was present at the time the goods were sold by Pearce, and that appellant Colby was there, and he did not remeinber seeing the others. This was all the evidence in any way connecting appellant Colby with the transaction. There was no proof that he in any way assisted, advised or encouraged Pearce to make the levy, nor does it appear that Pearce in any way needed any assistance to make the levy.

There was no one resisting the execution of the writ, or

doing angming to make it necessary ie Colby to assist. Colly had no interest in the matter.

From all that appears. the appellant Colly was, at the time of the taking the goods as well as at the time of sale, a mere spectator, not in any way participating in either the taking or selling

We think the evidence as against him is dearly insufficient to enstain the verdict of the jary.

The judgment is therefore reversel, and the cause remandel

1. AGENCY-ADMISSIONS-A servant to drive a team can not bind his master by admissions made after an accident in regard to his conduct at the time of the accident, which were mere matters of opinion.

2. IMPEACHMENT OF WITNESS.-It was not competent, by way of impaching the testimony of the servant who denied the admissions, to introdace other witnesses to testify that such admissions were made.

APPEAL from the Circuit Court of LaSalle county; the Hon. GEORGE W. STIPP, Judge, presiding. Opinion filed December 28, 1882.

Mr. SAMUEL RICHOLSON and Messrs. GEO. H. HAIGHT and GEO. C. COOPER, for appellant; that it is the duty of a person traveling on horseback to give way to a loaded vehicle, cited Beach v. Parmeter, 23 Penn. 196; Washburn v. Tracy, 2 Chipm. 136.

As to cases where an exception will be made to the general rule of contributory negligence: C. & A. R. R. Co. v. Becker, 76 Ill. 25.

A witness can not be impeached upon immaterial matter:

Teal v. Meravey.

1 Wharton on Ev. $$ 551-559; Lane v. Bryant, 9 Gray, 245; Robinson v. Fitchburg R. R. Co. 7 Gray, 92.

Instructions must not only be correct as abstract propositions of law, but must be applicable to the facts in the case: Lombard v. Martin, 39 Miss. 147; Gorman v. Campbell, 14 Ga. 137; McNair v. Platt, 46 Ill. 211; Atkinson v. Lester, 1 Scam. 407; Hesing v. McCloskey, 37 Ill. 342; South Evanston v. Lynch, 1 bradwell, 63; Harris v. Miner, 28 Ill. 135; Riley v. Dickens, 19 Ill. 29; Barns v. Kelly, 41 Miss. 339; Hayes v. Hinds, 28 Ind. 531; Southern Ex. Co. v. Newby, 36 Ga. 635; Ochiltree v. Carl, 23 Ia. 394; Pasley v. English, 10 Gratt. 236; Ward v. Henry, 19 Wis. 26; Pittsburgh, etc. R. R. Co. v. Krouse, 30 Ohio, 223.

If the injury was willfully committed by appellee, appellant can recover without even showing the exercise of ordinary care: C. & N. W. R. R. Co. v. Coss, 73 Ill. 394; C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576; C. & N. W. R. R. Co. v. Donahue, 75 Ill. 106; I. C. R. R. Co. v. Hetherington, 83 Ill. 510; Lafayette, etc. R. R. Co. v. Adains, 26 Ind. 76; Indianapolis, etc. R. R. Co. v. McClure, 26 Ind. 370.

An instruction is erroneous which withdraws from the jury any facts, however weak, which tend to prove issue: Edgar v. McArn, 22 Ala. 796; Hornes v. State, 23 Ala. 17; Cathron v. Moore, 1 Ala. 423; Toulmin v. Lessen, 2 Ala. 359.

Mr. L. L. THOMPSON and Mr. C. B. CHAPMAN, for appellee; that where a carriage and a horse pass on the road, each must keep its proper side, cited Shearman & Redfield on Negligence, 308, 310; Angell on Highways, $$ 328, 330, 331, 334; Oliphant's Law of Horses, 166; Turley v. Thomas, 8 C. & P. 103; Dudley v. Bolles, 24 Wend. 464; Clay v. Wood, 5 Esp. 42.

The law or usage of the road is not the criterion of negligence: Wayde v. Carr, 2 Dow. & Ry. 255.

The fact that the road is rough and rutty is no excuse: Earing v. Lansing, 7 Wend. 185.

Although the law imposes upon a party the duty of turning

VOL. XII. 3

Teal v. Meravey.

to the right, yet his disregard of that duty, will not justify a traveler on the proper side of the road, in carelessly permitting himself to be injured: Parker v. Adams, 12 Met. 415; Kennard v. Burton, 12 Shepley 39; Pluckwell v. Wilson, 5 C. & P. 375; Williams v. Holland, 6 C. & P. 23; Harpell v. Curtis, 1 Smith (N. Y.), 78; Brooks v. Hart, 14 N. H. 307; O'Maley v. Dorm, 7 Wis. 236; Davies v. Mann, 10 M. & W. R. 545; Bridge v. Grand Junc. R. R. Co., 3 M. & W. 246.

Where the injury arises from plaintiff's want of ordinary care, he can not recover: Washburn v. Tracy, 2 Chipm. 136; St. L. & S. E. R. R. Co. v. Britz, 72 Ill. 256.

As to the rule of comparative negligence: C. & N. W. R. R. Co. v. Coss, 73 Ill. 394; E. St. L. Pack. & Pro. Co. v. Hightower, 92 Ill. 139; City of Winchester v. Carr, 5 Bradwell, 486; Chi. City Ry. Co. v. Lewis, 5 Bradwell, 242; O. & · M. R. W. Co. v. Eaves, 42 Ill. 288; I. C. R. R. Co. v. Middlesworth, 43 Ill. 64; Ortmayer v. Johnson, 45 Ill. 469; C. & A. R. R. Co. v. Gretzner, 46 Ill. 74; C. B. & Q. R. R. Co. v. Payne, 49 Ill. 499; C. B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510; Rock R. I. & St. L. R. R. Co. v. Coultas, 67 Ill. 398; C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576.

A previous and contradictory statement may be given in evidence to impeach the credit of a witness: Wright v. Decklyne, Pet. C..C. 199; Gal. & C. N. R. R. Co. v. Fay, 16 Ill. 588; Lamb v. Stewart, 2 Ohio, 230; Allen v. Harrison, 30 Vt. 219; Fort v. Hunkins, 98 Mass. 523; Presley v. Powers, 82 Ill. 125; Craig v. Rohrer, 63 Ill. 325; The People v. Williams, 18 Cal. 187; Mageham v. Thompson, 9 Watts & S. (Pa.) 54.

As to instructions upon negligence: C. & N. W. R. R. Co. v. Scates, 90 Ill. 586; I. C. R. R. Co. v. Hetherington, 83 Ill. 510.

A verdict will not be set aside because evidence has been erroneously admitted and improper instructions given, when a new trial must result in the same verdict: Mattingly v. Crowley, 42 Ill. 300; Howe Mach. Co. v. Rosine, 87 Ill. 105; McConnel v. Kibbe, 33 Ill. 175; Curtis v. Sage, 35 Ill. 22; Peoria M. & F. Ins. Co. v. Frost, 37 Ill. 333.

Teal v. Mera vey.

LACEY, J. This was a suit commenced by the appellant against the appellee, to recover a claim of $25 damages alleged to have been sustained by him on account of appellee's negligently riding his horse on to former's buggy wheel at meeting on the highway.

The defense set up is that the collision was caused as much by the negligence on the part of the appellant as appellee, in fact, that the former's contributory negligence was of such a character as to entirely bar the action. The evidence as to the question of negligence was conflicting and especially to the point, whether there was any contributory negligence, and if so, whether it barred the action. Young Teal, the son of the appellant, who drove the buggy of his father, was a witness on the stand and had sworn to such facts as, if true, would have cleared him of all charge of negligence. Upon cross examination the boy was asked, against the objection of appellant's counsel and exception properly taken, these questions: Did you at the time and place of the accident, in presence of Meravey and Jamison, say that neither one was to b'ame, or in substance, words to that effect? Did you at the time of the accident, or shortly after, and at the place of the accident, say in the presence of Mr. Meravey, Mr. Kilmer, Mr. Bagby and Jamison, that it was an accident and neither one was to blame, or in substance that? Did you at the time and place of the accident, in the presence of Mr. Kilmer, Mr. Jamison and Mr. Bagby, have a conversation with the defendant, in which he said: "I am sorry this accident happened, but I was not to blame for it," and did you not in substance reply to Mr. Meravey, "you are not to blame"? To all which questions Franklin Teal, the son, replied in the negative, and to the last question said, "I told Mr. Meravey I knew very well who was to blame."

By way of impeachment and by way of contradicting the evidence of Franklin Teal on those points, the appellee was allowed, against the objection and proper exception of apellant, to show by the named parties: the appellee, Egbert Kilmer, Elijah Bagby and John Jamison, that Franklin Teal had made the statements attributed to him in the fore