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since such vacation taxes have been assessed and paid on said property as unsubdivided lands. The bill sets out the ownership of the property and the interests of the parties, Edwin A. Casey as the owner of an undivided onehalf and Charles H. Ruddock and Timothy H. McCarthy each of one-fourth, and prays that the city of Chicago may be decreed to have no right, title or interest in said premises or any part thereof, and that the said Ruddock, McCarthy and Casey, as their ownership and interests are set out, may be decreed to be the only persons having any right, title or interest to said premises and that said premises be partitioned.

The city of Chicago in its answer admits that said plat or subdivision was not in the form prescribed by law, and that said subdivision is now located within the said city of Chicago; denies that neither said town of Hyde Park nor said city of Chicago accepted any part of said subdivision or that no part of said subdivision was ever used as a public street or alley; admits the execution and recording of deeds of vacation, but alleges that they are void and of no effect because they were not executed by all the owners of lots and blocks in the said subdivision, and for the further reason that a common law dedication of public streets cannot be withdrawn or vacated under the provisions of the statutes of the State of Illinois; denies that by the execution and recording of said deeds of vacation the property described in said subdivision was thereby restored to its original condition as unsubdivided lands; avers that the plat of said subdivision has never been legally withdrawn, and that the streets and alleys as shown on the plat are still open for acceptance in behalf of the city of Chicago; that this defendant has neither accepted nor rejected the dedication offered in said plat or subdivision but is still awaiting the time when the public convenience and necessity will require it to make its election to accept or reject the same.

The only question in controversy between the plaintiff in error, the city of Chicago, and the defendant in error, Casey, and the other owners, was over the strips of land shown on the plat of said subdivision as streets and alleys. The cause was referred to a master in chancery to take the evidence and report. The allegations of the bill were fully proven, and in addition the evidence showed that said described land is low and swampy and unimproved; that to get around in the addition it is necessary to use a boat or wade; that no part of it has been used as streets or alleys or as a public thoroughfare. No evidence was submitted on behalf of the city of Chicago. The master made his report, finding that all the material allegations of the bill were duly proven; that neither said town of Hyde Park nor said city of Chicago has accepted any part of the subdivision for public use; that no part of said subdivision has been used as a public street, and that the offer to dedicate was withdrawn by proper deeds of vacation. The report finds that the city of Chicago has no interest in said premises, and recommends that partition be decreed as prayed in the bill. The court entered a decree accordingly, and the plaintiff in error, the city of Chicago, has sued out this writ of error, assigning as error the admission of improper evidence and the rendition of the decree in favor of the defendant in error.

The only evidence admitted was as to the ownership of the property, the deeds of vacation, proof that the deeds were executed by all the owners, the swampy and unimproved condition of the property and non-user of the portions platted as streets. This evidence was all material to the issues and there was no error in admitting it. It appears from the record that it is conceded in this case there was no statutory dedication of the streets and alleys of the subdivision in question. There was merely a common law offer to dedicate the streets and alleys marked on the plat of said subdivision to the town of Hyde Park for the use

of the public.

Such streets and alleys have never been used, and the blocks in question and the locus in quo of such streets and alleys is a swamp.

The facts in this case and the issues raised by plaintiff in error are very similar to those in the case of Moore v. City of Chicago, 261 Ill. 56. The premises involved in this suit are blocks 8, 9 and 10 in Cooper's addition to the town of Hyde Park, and in the Moore case the land in controversy was included in the streets embraced within blocks 1, 2, 3 and 4 of said Cooper's addition, except the strip thirty-three feet wide on the north side of said tract, which was a part of One Hundred and Sixth street. We held in that case that the making of a plat of a subdivision and filing the same for record is a mere offer on the part of the owner to dedicate the streets and other public grounds designated thereon to the public, and that no title or right vests in the public until there has been an acceptance of the offer; that public authorities are not bound to accept all of the streets and public grounds shown on the plat of the subdivision; that an acceptance of part of the offer of dedication is not an acceptance of all, and that where land platted as streets was laid out in the swamp without improvement or user of any kind for forty years, the making and filing of proper deeds of vacation will have the effect of withdrawing and canceling that portion of the plat included in such deeds.

So far as shown by the evidence in this case there was no acceptance or user of any portion of the streets and alleys embraced in said blocks 8, 9 and 10, and under the authority of the Moore case, and the cases cited therein, the decree in this case must be affirmed.

Decree affirmed.

HENRIETTA ROLOFF, Admx., Defendant in Error, vs. THE LUER BROTHERS' PACKING AND ICE COMPANY, Plaintiff in Error.

Opinion filed April 23, 1914.

1. Negligence—what is not an ordinary risk of business of a painter in an ice-making plant. The risk of tripping or stumbling over the bed-plate of an ice machine and falling in such a manner as to be caught under the crank-shaft of the machine is not a risk ordinarily incident to the employment of a painter or whitewasher in the ice-making plant, and if such risk is to be held to be assumed it must be upon the theory that the employee had worked in the vicinity of the ice machine for a sufficient length of time to have acquired knowledge of its construction and operation.

2. SAME-term "preponderance of the evidence" does not need to be defined. The term "preponderance of the evidence" is well understood without being defined, and while it would not be improper to give an instruction defining such term it is not reversible error to refuse it.

3. The court reviews the evidence in this case at length, and holds that the questions of contributory negligence and assumption of risk were questions of fact for the jury and have been conclusively settled by the judgment of the Appellate Court.

WRIT OF ERROR to the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Madison county; the Hon. L. Bernreuter, Judge, presiding.

WISE, KEEFE & WHEELER, for plaintiff in error.

C. H. BURTON, and MERRITT U. HAYDEN, for defendant in error.

Mr. CHIEF JUSTICE COOKE delivered the opinion of the

court:

Defendant in error, Henrietta Roloff, administratrix of the estate of William J. Roloff, deceased, brought an action on the case in the circuit court of Madison county against the Luer Brothers Packing and Ice Company, the plaintiff

in error, to recover for the death of William J. Roloff, which, it was alleged, was occasioned by the negligence of plaintiff in error. A trial before a jury resulted in a verdict for $6247.22 in favor of the plaintiff, and judgment was rendered upon this verdict. Plaintiff in error prosecuted an appeal to the Appellate Court for the Fourth District, where the judgment of the circuit court was affirmed. A writ of certiorari was thereafter granted by this court, and the record has been brought here for review.

The declaration in the case consisted of four counts, each of which alleged that on May 7, 1908, the plaintiff in error was possessed of and operating a packing plant in the city of Alton, and that William J. Roloff, the deceased, was then in the employ of plaintiff in error, engaged in the business of whitewashing and painting in the various rooms of said plant; that said plant contained a large amount of machinery, including a certain Ball ice machine, which was located in the engine room of the plant; that in the performance of his duties Roloff was required to use a scaffold and to move the timbers and planks thereof from place to place and from room to room as the work progressed; that on the day above mentioned, while Roloff, in the exercise of due care for his own safety, was attempting to move the planks and timbers of the scaffold from one part of the plant to another part he fell upon and was thrown under the crank-shaft of the Ball ice machine and was instantly killed. The negligence charged in the first count was, that the plaintiff in error failed to place a guard or railing or other like appliance around the crankshaft; that charged in the second count was, that plaintiff in error failed to furnish proper and sufficient light in the engine room; that charged in the third count was, that plaintiff in error failed to furnish sufficient help to assist Roloff in moving the planks and timbers of the scaffold from room to room; and that charged in the fourth count was, that plaintiff in error negligently ordered and directed