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appeared in the interest of Gage, and since then in his own interest. This contention may be true, and I am not prepared to say on the evidence and certainly not desirous to hold, that Mr. Sutherland intended, after June, 1875, to act for or on behalf of Selah Reeve as his solicitor, or supposed he was guilty of any unprofessional conduct toward him.

The mistake he has made has been in endeavoring, while connected with the prosecution of the claim, to acquire the ownership of the subject-matter of litigation, and in supposing that he could occupy the position of a bona fide purchaser without notice of a chose in action of this character.

There must be an accounting as to what moneys have been paid by Sutherland to the McMullens, to McDonald and Whitcomb and to the assignee in bankruptcy of Gage, for their respective interests or liens, and for the expenses and costs of the prosecution of the Reeve claim, also of the moneys received by Sutherland on behalf of said claim. The decree may provide for setting aside the order and so much of the decree as finds and decrees that Sutherland is the owner of the claim and that it be prosecuted for his benefit; and that the court, upon the issues herein, finds and decrees that Sutherland is entitled to the undivided half, and has an interest in said claim. only to the extent and upon the terms and conditions of the assignment of Gage to him, May or October, 1876. That the petitioner, Selah Reeve, is entitled to remainder of said claim and proceeds thereof, and that a reference be had to a master to take such accounting, and the question of costs and all other matters be reserved until the coming in of the master's report, and for further directions.".

Upon a careful consideration of the arguments contained in the briefs of counsel and a thorough and painstaking examination of the record, we have reached the conclusion that the issues made by the pleadings, the findings from the evidence, and the legal principles governing the rights of the parties, are correctly stated in the foregoing opinion. Assuming that appellant's contention that the case was improperly consolidated with what is known as the Terwilliger case is true, such order in no way injured appellant. The case proceeded

North Chicago Street Ry. Co. v. Cotton.

to decree as an independent suit, and the order of consolidation had no effect whatever on the result.

The case turns principally and almost wholly on the relation. which appellant sustained to Reeve or the Reeve interest on the records of the court.

We affirm the decree of the court below; not on the ground that appellant committed any actual fraud or intentional wrong in procuring an interest in the subject-matter of the litigation, which was adverse to Reeve. Appellant regarded his relations with Reeve as in fact severed, and that he owed him no further duty, and the facts were cogent to justify such a moral conclusion on his part.

He was mistaken, however, as to the legal consequence of his never formally changing the relation by which he was connected with Reeve upon the record. He, in legal effect, declined to be discharged as Reeve's solicitor, but persisted in holding the place which he originally obtained in the suit by Reeve's employment and with Reeve's consent.

He continued from beginning to end to be Reeve's solicitor on the record, and the evidence shows, though appellant may not in fact have known it, that the interest he was prosecuting was Reeve's interest.

Decree affirmed.

NORTH CHICAGO STREET RAILWAY COMPANY

V.

JAMES WHITCOMB COTTON.

Street Railways-Negligence of-Personal Injuries.

1. Where, in a personal injury case, the nature of the accident as proved, is such as to raise a presumption of negligence on the part of the defendant, the latter can not defeat a recovery unless it is shown how the accident happened and that it could not have been prevented by the greatest degree of diligence practicable under all the circumstances of the case.

2. A plaintiff in a given case is confined to the proof of the specific acts

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North Chicago Street Ry. Co. v. Cotton.

of negligence averred in his declaration, and it is reversible error to admit evidence of acts other than those alleged.

3. Under a count setting forth that a street railway company "negligently ran and operated its road and the cars propelled thereon," any act of negligence in the operation of the road would be admissible, and issue being taken upon such count, it may be shown that the defendant operated its road without placing sand boxes upon its grip cars.

4. In this case it was proper to decline to allow the plaintiff to be crossexamined as to the condition of his health twelve years before the accident. 5. All general ground of objection to the admission of evidence, is waived by making the objection specific.

6. Irrelevant remarks by counsel which have no influence upon the jury in a given case, are no ground for reversal.

7. To warrant a recovery for special damages, the particular damage must be stated in the declaration.

[Opinion filed July 30, 1891.]

APPEAL from the Superior Court of Cook County; the Hon. ELLIOTT ANTHONY, Judge, presiding.

Messrs. W. J. HYNES and EDMUND FURTHMANN, for appellant.

Messrs. STILES & LEWIS and CHARLES M. PEALE, for appellee.

MORAN, P. J. Appellee recovered a judgment against appellant for injuries alleged to have been received through negligence chargeable to appellant.

The first count in the declaration alleged "that defendant negligently ran and operated its road and the cars propelled thereon, and that by reason thereof the car in which the plaintiff was then and there being carried, was run into from the rear by another car belonging to defendant, and the plaintiff, while in the exercise of due care, was hurt, bruised, wounded and permanently injured and disabled, and the wooden leg which the plaintiff then and there wore, of the value of, to wit, $200, was broken and rendered worthless, and the plaintiff suffered great pain and was hindered and prevented from transacting his business and lost and deprived

North Chicago Street Ry. Co. v. Cotton.

of gains," etc., and "was thereby compelled to, and did lay out and expend divers large sums of money in and about being cured of his said injuries, to wit, $1,000," to his damage, etc.

The second account alleged that the grip car was defective and out of order, and could not be disconnected from the cable, and thereby, etc.

The third count alleges negligence of defendant in having brakes on colliding trains which were "defective, insufficient and out of order," thereby causing the injury.

It was shown by the evidence that appellee was a passenger on a street car of defendant, run by cable, and at the time of the accident was standing on the rear platform of the rear car, when it was run into, from behind, by another car of defendant following on the same track, while going through the La Salle street tunnel; that he was crushed between the colliding cars, his artificial leg split and rendered worthless, and the flesh on the stump of his leg torn and lacerated.

This was all that appellee was called on to prove to make out a cause of action under the first count of his declaration. From this evidence a prima facie case of negligence was made out against the company, and the burden was placed on it to show that the accident resulted from some cause for which it was not responsible.

The nature of the accident, as proved, was such as to raise a presumption of negligence on appellant's part, and the company could not defeat a recovery by the plaintiff, unless it showed how the accident happened, and that it could not be prevented by the exercise of the greatest degree of diligence practicable under all the circumstances of the case. G. & C. U. R. R. Co. v. Yarwood, 17 Ill. 509; P., C. & St. L. Ry. Co. v. Thompson, 56 Ill. 138; P., P. & J. R. R. Co. v. Reynolds, 88 Ill. 418; Eagle Packet Co. v. Defries, 94 Ill. 598; Curtis v. R. & S. R. R. Co., 18 N. Y. 534.

Appellant offered no evidence in explanation of the accident nor sought by the proof of any facts to relieve itself from the implication of negligence raised against it by the evidence introduced by the plaintiff. Appellant now contends

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North Chicago Street Ry. Co. v. Cotton.

that the judgment ought to be reversed because the court allowed the plaintiff to prove against defendant's objection, acts of negligence not specifically set out in the declaration.

Two of the counts of the declaration, as we have seen, did allege particular acts of negligence, and if the declaration contained no other count, plaintiff would have been confined to the proof of the specific negligence averred, and if defendant sought by evidence to deny or excuse the acts alleged, it would be reversible error to allow the evidence of other acts of negligence than those alleged. T., W. & W. Ry. Co. v. Foss, S8 Ill. 551; T., W. & W. Ry. Co. v. Beggs, 85 Ill. 80.

But the first count of the declaration alleges that defendant "negligently ran and operated its road and the cars propelled thereon, and that by reason thereof," etc. Under such an allegation any act of negligence in the operation of the road would probably be admissible. There is no attempt to disclose what particular acts of negligence are relied on.

It may be that defendant could have required more specific pleading, but that was not sought. Issue was taken on this count, and plaintiff was therefore entitled to prove any negligence in the running or operating the road or the cars propelled thereon, and so proof that the road was operated without sand boxes on the grip cars, was admissible. C., B. & Q. R. R. Co. v. Harwood, 90 Ill. 425; C., B. & Q. R. R. Co. v. Warner, 108 Ill. 549.

But evidence of particular negligence was entirely unnecessary on the part of plaintiff. He was not called on for any such proof, and he would have been more wise and skillful in the trial of his case had he omitted it.

There is no aspect of the case in which appellant can complain of it, however. As the verdict would go against the company without proof of any specific negligence, and as no effort was made to account for or excuse the accident or rebut the inference of negligence arising from the fact that it occurred, no harm could result from plaintiff going farther than the law required and specifying by evidence particular negligence.

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