were not available, except that the latter might be shown for the purpose of reducing the damages. Nor was it error to refuse the instructions of appellant which were based upon the above named defenses. The instructions, so far as they relate to the act in question, were a correct exposition of the law as applied to the facts in this case.

The giving of certain instructions is assigned as error on the ground that they ignore the proposition that under the Workmen's Compensation act appellee's contributory negligence should be considered by the jury as reducing damages. The jury were in another instruction, however, instructed that if the defendant has elected not to provide and pay the compensation to injured employees under the provisions of the Workmen's Compensation act it cannot escape liability for injuries, if any are shown by the evidence, sustained by the plaintiff arising out of and in the course of his employment, even though they believe, from the evidence, that such injuries, if any are shown, were proximately caused by the contributory negligence of the plaintiff, and the jury were instructed that in such case the contributory negligence, if any is shown by the evidence, should be considered by them in reducing the amount of damages. The same charge was contained in other instructions. On this point the jury were correctly instructed.

The admission of evidence complained of was simply the evidence necessary to show that appellant had rejected the provisions of the Workmen's Compensation act, and hence could not set up the defenses of assumed risk, fellowservant or contributory negligence, except that contributory negligence could be shown by way of lessening the damages. If the law is valid, and we have held that it is,then this evidence was proper. The court, on objection, refused to admit certain evidence offered on behalf of the appellant, being that of certain of its employees who testified as mining experts. The appellant offered to prove by these witnesses that the mine was completely and properly

equipped, constructed and operated, to contradict the evidence of appellee and other witnesses as to the condition of the entry where he was injured. In a certain class of cases expert evidence is proper to show the effect of certain conditions, but the sole question in this case was whether or not the alleged entry in question had become obstructed with debris so that it was unsafe for the purposes of appellee's employment. Other employees of the appellant testified in its behalf as to the actual condition of the entry at the time of the accident, but expert evidence or the opinions of witnesses as to the condition of the mine generally, or even as to the condition of the entry at the place where appellee was injured, or the probable effect of such condition, would not be competent as against the evidence of witnesses who testified as to the actual conditions, nor do we think such evidence would be material in this case.

Appellant also contends that the verdict of the jury and the judgment are contrary to the law and evidence and that the verdict and judgment are excessive. The injury to appellee was of such a nature that it is difficult for a court and jury to fix exactly the measure of damages, and it is more difficult for a court of review to pass on a contention that such damages are excessive. The extent of appellee's injury covers a wide range of possibilities. The physician who attended him longest and who seems to have a better knowledge of the nature and extent of the injury, testified that the injury is permanent. Appellee suffered a sprain to his ankle, from which he had practically recovered at the time of the trial, four months after the accident. This part of the injury is unimportant in estimating the amount of the damages. As to the other injury, the broken arch of the foot, the evidence, except that of the physician above mentioned, is silent as to its probable or ultimate effect. It is difficult to tell whether it is an injury from which the appellee will recover in a few months or will recover the full use of his foot by the use of mechanical ap

pliances, or whether he will be a cripple for life. In the latter event the damages would not be excessive. A motion was made for a continuance on account of the absence of a material witness, and in the affidavit for the continuance by appellant it was set out that said witness would testify, if present, that appellee at a time after the commencement of the suit, and prior to the September term, 1913, of court when the suit was tried, while passing the home of witness was attacked by a dog, and that appellee became frightened, threw away his crutches, and ran from the dog as though he were not injured and suffering pain. The affidavit was admitted for the purpose of avoiding a continuance. This evidence is denied by appellee. Had appellant been under the terms of the Workmen's Compensation act appellee could have recovered only about thirty per cent of the amount of the judgment had he been totally incapacitated for two years. In Consolidated Coal Co. v. Shepherd, 220 Ill. 123, it was held that a judgment for $2000 recovered for an injury to the foot and ankle of a man twenty-eight years of age, which incapacitated him from working for thirty-eight days and the use of his foot being to some extent permanently impaired, was held to be not excessive. In Town of Cicero v. Bartelme, 212 Ill. 256, it was held that a judgment for $3500 for a transverse fracture of the knee-cap, producing a permanent injury, was not excessive; and in Chicago, Rock Island and Pacific Railway Co. v. Steckman, 224 Ill. 500, it was held that a judgment for $3000 was not excessive, where the plaintiff, a laborer, received serious and painful injuries in one of his legs and where his capacity for work was reduced. Appellee, on the trial, exhibited the injured foot to the court and jury, and the evidence of one of the physicians was based, in part, on seeing the foot at the time of the trial. No evidence was offered by appellant, by physicians or otherwise, to show the nature and extent of the injury. In any event, the amount of damages, if any, is largely a question

.

for the jury and must be left to their sound discretion. (Springfield Consolidated Railway Co. v. Hoeffner, 175 Ill. 634.) Such a judgment will not be set aside, on appeal, unless the amount is unreasonable or plainly the result of passion or prejudice. (North Chicago Street Railroad Co. v. Zeiger, 182 Ill. 9; Western Underwriters Ass'n v. Hankins, 221 id. 304.) On the whole we are unable to say that the judgment was so excessive as to warrant a reversal for that cause.

For the reasons given the judgment of the circuit court will be affirmed.

Judgment affirmed.

THE CITY OF CASEY, Appellee, vs. THE CINCINNATI, HAMILTON AND DAYTON RAILWAY COMPANY, Appellant.

Opinion filed April 23, 1914.

I. SPECIAL ASSESSMENTS-no presumption can be indulged in support of jurisdiction of the court. As the levying of a special assessment under the Local Improvement act is purely statutory, jurisdiction can be acquired only in strict conformity with the statute, and such jurisdiction must appear upon the face of the record, as no presumption will be indulged in its support.

2. SAME-jurisdiction of a particular assessment case depends upon a proper petition. The county court has jurisdiction over the general subject of special assessments, but it can acquire jurisdiction of a particular assessment case only by the filing of a petition by the officer specified in the ordinance, in the name of the municipality, praying that steps may be taken to levy a special assessment for the improvement.

3. SAME-the petition must be filed by some officer of the city. Under the Local Improvement act every petition for the levy of a special assessment for the making of a local improvement, whether private property is required to be taken for the improvement or not, must be filed by some officer of the city designated in the ordinance or by resolution.

4. SAME-petition filed by private person is unauthorized. A petition for a special assessment filed by a private person is unauthorized and confers no jurisdiction upon the court, even though

such person is designated by name in the ordinance as the person to file the petition, where there is nothing whatever to show that such person is an officer of the municipality.

5. SAME-extent to which judgments refusing order of sale for assessment are conclusive. Judgments refusing applications for judgment and order of sale for the successive installments of a special assessment are conclusive that the property is not liable to assessment under that ordinance, but they have no force as to a new assessment under a new ordinance passed under section 60 of the Local Improvement act.

6. SAME―objection that petition was not presented by officer of the municipality cannot be waived. An objection that the petition for the levy of a special assessment was not presented by an officer of the municipality goes to the jurisdiction of the court over the subject matter and is not waived by filing other objections.

7. SAME-when description of land is not vague and uncertain. The description of land specially assessed is not vague and uncertain if the land may be located from the description given and the plat of the territory offered in evidence.

CRAIG, J., dissenting.

APPEAL from the County Court of Clark county; the Hon. H. R. SNAVELY, Judge, presiding.

S. M. SCHOLFIELD, and DAVISON & BARTLETT, for appellant.

WILBER H. HICKMAN, and EVERETT Connelly, for appellee.

Mr. JUSTICE DUNN delivered the opinion of the court: This is an appeal from a judgment of the county court of Clark county confirming a special assessment.

On April 16, 1908, the city council of the city of Casey passed an ordinance for the paving of Jasper avenue, and a judgment of confirmation of a special assessment therefor was rendered on June 9, 1908. At the June terms, 1909, 1910, 1911 and 1912, applications were made to the county court for judgment against the land involved here for alleged delinquent installments of this assessment, and,