The Chicago and Northwestern Railway Co. v. Jackson.

sure that he could use it in the discharge of his duty, and hence did not observe the defect.

It is again urged that it was the duty of appellee to see and know the condition of these steps, and the case of the Illinois Central R E Co. v. Jewell, 46 Ill. 99, is referred to in support of the position. It is there said the condition of the brake is under the special care of the brakeman, and that it is his business to see that it is in a fit condition for use, and to report defects to the company. While this is true, it is with the qualification that the brakeman knew, or could by reasonable precaution know, of the defect. If the defect is inherent from improper material, or from unskillful workmanship, and the defect had not been developed, he should not be held to have known the fact, and to report to the proper department. As to these steps there was no direct evidence whether appellee previously knew or could have known of this defect. If this car had been used by the road while he was a brakeman on the train of which it was a part, then he would be presumed to have known of its condition, and required to govern his conduct in reference thereto. This was a matter of inference from the evidence in the case, to be determined by the jury, from all the circumstances in proof.

It is held to be the duty of these companies to furnish to their employees safe materials and structures. Such an obligation is permanent and cannot be avoided by them by delegating the power to others, and the understanding with their servants is direct, that they will furnish suitable and safe materials and structures. Chicago and Northwestern R. R. Co. v. Sweet, 45 Ill. 197.

This car was placed upon the road by some one superior to appellee in authority, and he was acting under such authority. The jury might reasonably infer that those placing it on the road knew its condition. He had no choice but to obey orders, and was compelled by those above him in authority to ascend the car and again descend and uncouple the car from the engine when required. He was not, and could not be, responsible for the defect. Nor should he be held liable for the defective car, as he neither furnished it nor placed it upon the track. Nor should he be responsible for the acts of those who did, as fellow servants, as the fault was not that of such a servant engaged in the same department of the common business. It was the act of a superior, in another department.

It was held in the case of the Chicago and Northwestern R. R. Co. ▼. Sweet, supra, that, although a railroad company may construct

The Chicago and Northwestern Railway Co. v. Jackson.

their road and furnish its machinery through its servants, yet other employees, in different departments are not to be prejudiced by the negligence of such servants.

Again, in the case of the Illinois Central R. R. Co. v. Jewell, supra, it was held that where the company had employed a reckless and incompetent engine driver, and his character was known to them, and he was still retained, the company was liable for the death of a brakeman killed by the recklessness or improper conduct of such driver. Hence, in this case, appellee should not be prejudiced by the negligence of those having charge of the inspection and repair of their cars, as they were superior to him in authority, and their notice of the defect was notice to the company, as they can only receive notice through the proper officers of the road.

We have carefully examined the instructions of appellants, which were refused, and find that all of them embodying principles applicable to the case were substantially given in their other instructions. We can perceive no objection to those given for the appellee. The instructions given for appellants were all and were more than they had a right to have given. The jury seem to have been warranted in finding the issues for appellee.

We now come to the consideration of the question of damages. $18,000 is so large a sum that we regard it excessive. That amount put at interest, at the highest legal rate, would produce, annually, $1,800-more, by a large sum, than is obtained by the most skillful mechanics for their labor, while appellee, in pursuit of his calling as a brakeman, could probably not have received more than one-third of that sum. It is true that appellee has received a grievous injury, and has been rendered almost unfitted for business, but the railroad company should not be required to render to him a sum which would produce a greater income than he could have earned had he not been injured. He is only entitled to compensation, and not to vindictive damages, as corporations are not liable to more than compensatory damages, unless the injury is wanton or willful, and that is not the case in this record. But we can see that, after deducting physicians' bills, loss of time and other expenses, including counsel fees, the sum left would, at interest, produce an annual sum largely above any amount he could have expected to earn had he not been. disabled.

This verdict seems to have been the result of passion or prejudice, and not of calm and dispassionate reflection. The finding must be

Kurtz v. Hibner.

in proportion to the injury sustained, and when it is greatly excossive, as it is in this case, it will be set aside. The judgment of the court below is reversed, and the cause remanded.

By a will, land in "section thirty-two" was devised to E., and land in "section thirty-one" was devised to J. Held, that parol evidence was inadmissible to show that the draughtsman of the will made a mistake, or that "section thirty-two" should be section thirty-three, and "section thirty-one" should be section thirty-two. (See note, p. 669.)

A parent made a parol promise to convey land to his child, whereupon the child took possession and made extensive and valuable improvements. Held, after the death of the parent, that specific performance could be enforced.

BILL in chancery. John Hibner and others, children and heirs at law of John Hibner, deceased, filed their bill for partition, in the circuit court of Will county, against appellants, Charles, Elizabeth and James Kurtz.

The bill alleges that, by the death of the deceased, complainants and defendants, except James, became seized in fec, as tenants in common, of the west half of the south-west quarter of section 33, town 35, range 10 east, eighty acres, and the south half of the east half of the south-east quarter of section 32, town 35, range 10 east, forty acres; that Elizabeth was entitled to the undivided one-sixth part of the lands; that James claimed title to the forty-acre tract; and that Elizabeth is a daughter of the deceased and the wife of Charles. The bill is in the usual form.

Appellants answered, admitting the allegations of the bill, except as to the intestacy of Hibner, and averred that he devised the eightyacre tract to Elizabeth, and the forty acres to James; that there was a misdescription of the lands in the will, and that Charles and VOL. VIII. 84

Kurtz v. Hibner.

Elizabeth had been in possession of, and made valuable improvements upon, the eighty-acre tract, upon the promise of the deceased that he would give the same to Elizabeth.

The usual replication was filed, cause heard, and decree rendered for partition. To reverse this decree appellants have brought the case to this court.

D. H. Pinney, for appellants.

W. C. Gooline, for appellees.

THORNTON, J. (after stating the facts). The circuit court refused to hear parol evidence, to explain the language of the will. The only provisions of the will to be considered are the following:

"Third. I give and bequeath to my daughter, Elizabeth Kurtz, all that tract or parcel of land situate in the town of Joliet, Will county, Illinois, and described as follows: The west half of the southwest quarter of section 32, township 35, range 10, containing eighty acres, more or less, together with all the appurtenances thereunto belonging, or in anywise appertaining.

"Seventh. I give and bequeath to my grandson, James Kurtz, all that part or parcel of land described as the south half of the east half of the south quarter, section 31, in township 35, range 10, containing forty acres, more or less."

Appellants offered to prove that the testator, at the time of his death, owned only one eighty-acre tract, in township 35, which was the one described in the bill; that a mistake was made in drafting the will, by the insertion of the words "section thirty-two," instead of "section thirty-three;" that Charles and Elizabeth Kurtz had been in the actual possession of the tract for a number of years, and upon the repeated promise of the testator in his lifetime, that he would give the same to Elizabeth, had made lasting and valuable improvements, at their own expense, on the land; had fenced it, and erected thereon a dwelling-house, barn and corn cribs, dug wells and set out fruit trees.

Appellants also offered to prove that James Kurtz, at the time of the death of the testator, was in the actual possession of the fortyacre tract, as the tenant of the deceased, and that the draughtsman of the will, by mistake, inserted the word "one," after the words "section thirty," instead of "two," so as to bequeath to James land

Kurtz v. Hibner.

in section thirty-one instead of section thirty-two. This evidence was rejected by the court on the hearing.

It has been strongly urged by counsel for appellants, that this evidence should have been received for the purpose of ascertaining the intention of the testator. The will devises land to Elizabeth in section thirty-two; the parol evidence offered was for the purpose of locating the land in section thirty-three. The will devised to James "the south half of the east half of the south quarter of section thirty-one." It was proposed to show by parol evidence that the testator intended to devise to James "the south half of the east half of the south-east quarter of section thirty-two."

The law requires that all wills of lands shall be in writing, and extrinsic evidence is never admissible, to alter, detract from, or add to, the terms of a will. To permit evidence, the effect of which would be to take from a will plain and unambiguous language, and insert other language in lieu thereof, would violate the foregoing well-established rule. For the purpose of determining the object of a testator's bounty, or the subject of disposition, parol evidence may be received, to enable the court to identify the person or thing intended. In this regard, the evidence offered afforded no aid to the court. The devise is certain, both as to the object and subject There are no two objects, no two subjects.

The intention of the testator must prevail. How shall this be ascertained? In the case of Smith v. Bell, 6 Pet. 74, Chief Justice MARSHALL says: "The first and great rule in the exposition of wills, to which all rules must bend, is, that the intention of the testator, expressed in his will, shall prevail, provided it be consistent with the rules of law. This principle is asserted in the construction of every testamentary disposition. It is emphatically the will of the person who makes it, and is defined to be 'the legal declaration of a man's intentions, which he wills to be performed after his death.' These intentions are to be collected from his words, and ought to be carried into effect, if they be consistent with law."

The thing devised is certain and specific. Section, township and range are given. The evidence offered, as to the mistake in the section, would have made a new and different will. The testator devises lands in certain sections. The description is full, certain and explicit. No doubt arises upon the reading of the will. Every mind is forced to the same conclusion, that the land devised, the subject of disposition, is clearly, and without the slightest ambiguity