heirs less entitled to the fund, for the law absolutely prohibits such a relation between such an association and the creditors of a member. We have held that where there is a legally appointed beneficiary, a member may, upon a sufficient consideration, make a valid contract which will deprive him of the right to make an appointment of another beneficiary. (McGrew v. McGrew, 190 Ill. 604; Royal Arcanum v. Tracy, 169 id. 123.) In no case has it been decided that an ineligible beneficiary has a right to have his advances made to the member re-paid out of the proceeds of the certificate. All that he can claim is that he shall have restored to him what he has expended for the benefit of those who are entitled to the fund, that is, the amount paid for assessments, and interest. The appellants insist that the evidence of payments made by James E. Keefe is too vague and uncertain to justify a finding that any amount was due from Edward F. Keefe to James E. Keefe or that the latter paid from his own funds any of the assessments on account of this certificate, and that if he did make any such payments the amount is not shown by the evidence. From an examination of the evidence we think it fairly appears that all the assessments were paid by James E. Keefe, and while the amount is not ascertained with entire certainty, the amount stated by him ($619) is sustained by the evidence. is entitled to be re-paid this amount, with interest. March 20, 1908, pursuant to an order of the court, a certificate of deposit for $4937.86,-the balance due on the certificate after deducting attorneys' fees and costs,—was deposited in escrow with the Northern Trust Company to await the further order of the court. The amount due James E. Keefe should bear five per cent interest to the date of that deposit, amounting on that date to $866.60. After that date it should bear the rate of interest fixed for the certificate of deposit. He On The judgment of the Appellate Court and the decree of the circuit court are reversed and the cause is remanded to the circuit court, with directions to enter a decree in accordance with this opinion. The appellees will pay the costs in all the courts. Reversed and remanded, with directions. JOSEPH J. JOY, Admr., Appellant, vs. THE CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, Appellee. Opinion filed April 23, 1914—Rehearing denied June 4, 1914. 1. NEGLIGENCE-—when a railroad company is not bound to keep lookout for trespassers. A railroad company owes a duty to keep a lookout at places where it has permitted the public to travel along or over its tracks for a considerable period of time and a considerable number of people have availed themselves of such use, and where the railroad runs through populous portions of a city, where people frequently go upon or pass over the tracks with knowledge of the company or for such length of time that the company is chargeable with knowledge, but the law casts no duty upon a railroad company to keep a lookout for trespassers on its tracks in the open country, remote from habitation and where it would not be expected that a man would be on the tracks. 2. SAME—when duty arises to avoid injury on railroad tracks. Where an accident occurs at a place where the railroad company is under no duty to look out for trespassers, the duty to exercise care does not arise at the moment an object on the track is discovered by the engineer, but it arises at the time the object is discovered to be a human being in a helpless or perilous position. (Martin v. Chicago and Northwestern Railway Co. 194 Ill. 138, distinguished.) 3. SAME question whether duty arises under the facts is one of law. Where the law raises a duty, the question whether it was properly performed or not is one of fact, but whether, under the facts, the law raises a duty is a question of law. APPEAL from the Appellate Court for the Second District;-heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. S. C. STOUGH, Judge, presiding. R. A. GREEN, H. M. KELLY, and BUTTERS & ARMSTRONG, for appellant. BOYS, OSBORN & GRIGGS, (J. A. CONNELL, of counsel,) for appellee. Mr. JUSTICE FARMER delivered the opinion of the court: This suit was brought to recover damages for the death of Joseph Hayes, who was struck by an engine of the Chicago, Burlington and Quincy Railroad Company on its tracks between Ottawa and the village of Dayton, on the afternoon of November 9, 1907, and so injured that he died shortly afterwards. At the time deceased was struck he was lying with his head and one arm on the west rail of the railroad track and his body extended west from the track. The declaration alleged deceased was on the track unable to care for his own safety and in great peril; that defendant's servants operating the train knew of his presence on the track in time to have avoided injuring him by the exercise of due care but wantonly and negligently ran the engine against him and killed him. Another count alleged the defendant's servants were aware of the peril of the deceased and wantonly and negligently ran against him. Another count was similar, except it alleged that after defendant's servants became aware of the peril of deceased they negligently ran against and killed him. At the conclusion of the plaintiff's evidence the trial court directed a verdict for the defendant. Plaintiff appealed to the Appellate Court for the Second District, and that court affirmed the judgment and granted a certificate of importance, upon which a further appeal is prosecuted to this court. The fireman who was on the engine at the time the accident occurred was dead at the time of the trial and the case substantially depends upon the testimony of Horace D. Stedman, the engineer in charge of the engine that struck Hayes. At the place where the injury occurred the railroad track of appellee runs north and south. It was in the open country, remote from houses and highway crossings. The nearest railroad crossing was north of the place of injury in the neighborhood of a mile, in the village of Dayton, and the nearest railroad crossing south of the place of injury was about one and one-half miles. There was no house nearer the place than one-fourth mile, and there is no proof that at the place of the injury the track was used for travel or for any other purpose than that of appellee. The track was ballasted with cinders on a level with the top of the ties and extended on each side of the track, sloping down to a ditch on the west side, which was one or one and one-half feet below the ties. The engineer, who was seventy-nine years old at the time he testified and not then in the service of appellee, testified he first saw an object on the track when he was 80 or 100 rods south of it. A few days before he had seen an object on the track at the same place, and on stopping his train found it to be a bundle of waste paper out of a sand car. thought this object was the same bundle of waste paper. No part of the body except the head and shoulders was visible from the engine until he got pretty close. The train consisted of an engine, baggage car and two coaches and was running about twenty miles an hour. After first seeing the object which he believed to be a bundle of waste paper he did not look at it again until the fireman told him it was a man. He immediately applied the emergency brake, shut off steam and sounded the alarm whistle, but was then too close to deceased to stop his train before striking him. When the train came to a stop the rear coach was opposite the body of deceased, which was lying on the west side of the track. There were no weeds or other obstructions on the railroad grade at the place where the deceased was struck. He Appellant insists the proof at least tends to show appellee's servants in charge of the engine were aware of the presence of deceased on the track, and of his peril and danger, in time to have avoided injuring him; that with such knowledge, and in disregard of their duty, they negligently ran the engine against and upon the deceased. The engineer testified that when he first saw the object on the track he was from 80 to 100 hundred rods south of it and could have stopped his train before reaching it, but he did not become aware that the object was a man until too close to stop his train. Appellant concedes no duty rested upon appellee to anticipate the presence of deceased on the track or to keep a lookout to discover him in the first instance, but it is claimed that when the engineer saw an object on the track it was sufficient to put him upon inquiry as to what the object was, and it should have been submitted to the jury to determine whether appellee acted negligently, after seeing the object on the track, in not determining what it was in time to have stopped the train before striking the deceased. It has been held by this court, and almost universally, that the law casts no duty upon a railroad company to keep a lookout for trespassers on its track in the open country, remote from public crossings, cities and towns. This is conceded and requires no citation of authority. Exceptions to this general rule are (1) places where the railroad company has permitted the public to travel along or over its track for a considerable period of time and a considerable number of people have availed themselves of such use, and (2) where the railroad runs through populous portions of a city, where people frequently go upon or pass over the track with knowledge of the company or for such a length of time that the company is chargeable with knowledge. Neither of the exceptions is involved in this case. If the engineer had not seen any object upon the track it would not be contended there could be any liability, for the general rule would apply that appellee owed no duty to keep a lookout for trespassers. The alleged liability is based |