Syllabus. Opinion of the Court.

KANKAKEE & ILLINOIS RIVER RAILROAD COMPANY

V.

HANNAH E. CHESTER.

1. ASSESSMENT OF DAMAGES- right of way. In a proceeding to condemn a strip of land for a right of way by a railroad company through a party's farm, consisting of several tracts, both parties, on the trial, treated the farm as a single tract in their examination of witnesses and instructions, and the jury fixed the compensation and the owner's damages as upon one tract. Upon appeal, the company, for the first time, objected that the finding should have applied to each tract separately: Held, that the objection could not be urged for the first time in the appellate court. The question could not even be raised on motion for a new trial.

2. ERROR-objections waived by silence. It is a rule of general application in courts of law that if a party acquiesces in the mode of conducting a cause by his adversary, by failing to object and except in apt time, then whether the objection pertain to the introduction of evidence, the measure of damages, or instructions to the jury, he will be precluded from raising it in the appellate court.

APPEAL from the Circuit Court of Livingston County; the Hon. CHARLES H. WOOD, Judge, presiding.

Mr. THOS. P. BONFIELD, for the appellant.

Mr. L. E. PAYSON & Mr. J. T. CULVER, for the appellec.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

This was a proceeding instituted by appellant to condemn for its use as a right of way a strip of land one hundred feet wide running through appellee's farm. It appears that the farm comprised several tracts, containing in all four hundred and forty acres, lying together in one body and under cultiva

tion.

Upon the trial in the court below, before a jury, both parties,

Opinion of the Court.

as appears by the record, treated the farm as one tract, without objection, by the introduction of evidence and instructions to the jury; and the jury fixed the compensation and assessed appellee's damages as upon one tract.

Now, upon appeal to this court, appellant for the first time raises the question and insists that the jury should have fixed compensation and assessed damages as to each tract comprising the farm, separately.

We shall not enter into any construction of the statute with reference to the question, because if it gives the right as claimed by appellant, still it is one that may be waived; and appellant having, all through the trial, both as respects the examination of witnesses and asking instructions to the jury, treated appellee's farm as a single tract, and remained silent as to the right now insisted upon, we must regard it as having waived the right.

It is not a question affecting the jurisdiction of the subjectmatter, and, aside from such questions, it is a rule of general application in courts of law, that if a party acquiesce in the mode of conducting a cause by his adversary, by failing to object and except in apt time, then, whether the question pertain to the introduction of evidence, the measure of damages, or instructions of the court to the jury, he will be precluded from raising it in the appellate court. Nor can it be raised by a motion for a new trial in the court below. Here the appellant not only failed to object to appellee's evidence, which treated the whole farm as one tract, but expressly acquiesced in it by the introduction of evidence in the same way. No grounds are stated in the motion for a new trial, and to be allowed to start the question here, for the first time, would operate as a snare and surprise upon the appellee, which the law will not tolerate. The judgment of the court below must be affirmed. Judgment affirmed.

Syllabus. Statement of the case.

EARL G. BARTON

v.

TIMOTHY MOSHER.

1. PARTIES IN CHANCERY. On bill in equity against an assignee to whom effects were assigned for the benefit of creditors, to have an indebtedness from the assignor set off against a judgment recovered by the assignee against the complainant, the proof showed that the debts against the assignor yet unpaid were inconsiderable in amount, and that there was an abundance of assets in the hands of the assignee to pay them: Held, that it was unnecessary to reverse the decree in order that those other creditors might be made parties.

2. COSTS-chancery. The award of costs in chancery suits is a matter of discretion with the court below.

APPEAL from the Circuit Court of Knox County; the Hon. ARTHUR A. SMITH, Judge, presiding.

This was a bill in chancery filed by Mosher, the appellee, against appellant, Earl G. Barton, assignee of Daniel N. Barton. The assignment was made for the benefit of creditors. The assignee sold certain personal property to one Cook, for which he gave his note of $500 with the appellee as security. The assignee recovered judgment on this note against appellee for $666.05, there being no service on Cook. Daniel N. Barton was largely indebted to the appellee, and the debt was intended to be secured in the assignment. The bill showed the death of Daniel N. Barton, insolvent, the taking possession of all his effects by Earl G. Barton as assignee, and his insolvency, and prayed to have the indebtedness due complainant set off on the judgment, and for an injunction. The court rendered a final decree on the hearing, making the injunction perpetual as to $574.35 of the judgment, and ordered Mosher to pay the balance of that judgment less the costs of suit.

Messrs. CRAIG & HARVEY and Mr. G. C. LANPHERE, for the appellants.

Messrs. KITCHELL & ARNOLD, for the appellee.

Opinion of the Court. Syllabus.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

The open accounts on each side in this case were properly disregarded by the court. They were nearly balanced, and the proof in regard to them was unsatisfactory.

Leaving them out of view, we think the amount of the set off, which the court allowed against the judgment, is correct, and that neither party has just ground to complain of its allow

ance.

The proofs show that the debts of the assignor existing at the time of the assignment, which remain unpaid, are inconsiderable in amount; that there are abundant assets in the hands of the assignee to pay them; and we deem it unnecessary to reverse the decree in order that the creditors to whom these debts are due may be made parties.

The award of costs was discretionary with the court below, and we do not feel called upon to interfere with the exercise of that discretion in this case.

The decree of the court below is affirmed.

Decree affirmed.

CHICAGO CITY RAILWAY CO.

บ.

ELLEN YOUNG, Adm'r, etc.

1. NEW TRIAL-finding as to facts. Unless a verdict is manifestly against the evidence, and is to be attributed to the passion or prejudice of the jury, or to a misapprehension of the facts, the judgment thereon should not be disturbed.

2. NEGLIGENCE-liability for death caused by. It is the duty of a street railway company to carry their passengers with safety; and if the death of a passenger results from the carelessness of its servants in the management of its car, or from a defective track, or from an overloaded car, or from all combined, the company will be liable.

3. EVIDENCE-weight of. When the testimony of the witnesses is con

Opinion of the Court.

flicting as to any material fact, the weight to be given to one witness more than to another should be left to the jury.

APPEAL from the Superior Court of Chicago; the Hon. JOSEPH E. GARY, Judge, presiding.

Messrs. HITCHCOCK, DUPEE & EVARTS, for the appellant.

Mr. MELVILLE W. FULLER, for the appellee.

Per CURIAM: The sole ground upon which a reversal is sought, is that there is no evidence to sustain the verdict.

Unless the verdict is manifestly against the evidence, and is to be attributed to the passion or prejudice of the jury, or to a misapprehension of the facts, the judgment should not be disturbed.

The deceased was a passenger on the car of the company, and it was its duty to carry him safely. If the death resulted. from the carelessness of the servants of the company in the management of the car, or from defective track, or from an overloaded car, or from all combined, then the company is liable.

Upon first entering the car, the deceased obtained a seat. The car, from some cause, ran off the track; and the conductor requested the assistance of the passengers to put it on. The deceased did not regain his seat, and from the crowded condition of the car was compelled to stand on the front platform. Thus he was brought into close proximity to the brake, which was used by the driver, at or about the time of the accident. The jury might fairly have inferred, that he was thrown from the platform by the sudden turning of the brake.

One witness testified, that the driver stopped the car and then started again," and whirled his brake around ;" and within a second or two after, the misfortune occurred. Another witness testified to a "surging motion," and a "jarring" of the car; and that this was attributed to the condition of the track.

The jury were justified from the evidence in the conclusions, that the car was greatly overloaded; that the track, about the