Beem vs. Kimberly and another.

came to the widow by law and not by the will. There being no intention on the part of the testator to limit the right of the respondent as to her $1,000 legacy on the condition that all the residue of his estate should go to his two sons, no case for an election is made out. Beall v. Schley, 2 Gill, 181, 199. The will of Harvey L. Kimberly presented no case for an election by the respondent. At the time the will was made, and at the time it took effect, she had no more interest in any of the property devised and bequeathed by the testator to his two sons than any other stranger. She had nothing in that property to release, and so could release nothing by taking her legacy under the will. See 2 Story's Eq. Jur. §§ 1075, 1076, and cases cited; Havens v. Sackett, 15 N. Y. 365, 369; Jarm. Wills, 385.

We think no case can be found in which it has been held that a legatee or devisee in a will cannot take and hold any other property attempted to be devised or bequeathed by the testator in the same will to some other person when such legatee does not make a subsequent claim to such other property by virtue of some title in himself at the time the will takes effect, or unless he has entered into the possession of such property, claiming to make such entry by virtue of a title given to him by the will before making any adverse claim thereto. This exception was made in the case of Stump v. Findlay, 2 Rawle, 168, 174, cited by the learned counsel for the appellants. All that was decided in that case was that a devisee of a life-estate in land, when the remainder was given by the same will to other persons, could not, after entry as life-tenant under the will, dispute the title of the remainder-man named in the same will, and that a purchase by the tenant of the life-estate of an adverse title, while in the possession of such life-estate under the will, would inure to the benefit of his life-estate, and also to the benefit of the persons entitled to the remainder under the will.

Winstanley, Adm'r, etc. vs. The Chicago, Milwaukee & St. Paul R. Co.

It is said that it was error to charge the costs to one of the defendants. In equity cases the question of costs is very much in the discretion of the court. The appellant against whom the costs in this case were charged by the circuit court was the party especially chargeable with the wrong done in this case. It does not seem inequitable, therefore, that he should be charged with the costs of the proceeding.

By the Court. The judgment of the circuit court is affirmed.

WINSTANLEY, Administrator, etc., Respondent, vs. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant.

September 22-October 9, 1888.

Railroads: Crossing of private way: Duty to erect warning sign and to sound whistle: Unlawful speed: Proximate cause of accident: Contributory negligence: Court and jury: Evidence: Credibility of witnesses.

1. It may be negligence for a railroad company not to sound the whistle of a locomotive before it crosses a private way in a city, or not to place at the crossing of such way a sign with the warning, "Look out for the cars," although there is no express provision of law requiring those things to be done in such a place.

2. Plaintiff's intestate was killed at the crossing of a private way and a spur track of the defendant's railroad in a city. His team had been standing about twenty-six feet west of the track, when he got into the wagon and drove on a walk towards the crossing. Nearly the whole track to the south for a long distance was hidden by buildings until the team came within about four feet of the western rail, when he could have seen a car if it had been within thirty feet of the crossing. When the heads of the horses were over the western rail, but before their feet had reached it, the northwest corner of a car being pushed from the south caught the collar of the off horse, turning the team suddenly to the left, and the intestate was thrown out under the car and killed. It was a cold morning and the wind was blowing strongly towards the

Winstanley, Adm'r, etc. vs. The Chicago, Milwaukee & St. Paul R. Co.

south. Empty cars were pushed northward over that crossing at about that time every morning, but it is uncertain whether or not the deceased knew that fact; and the evidence was conflicting as to whether he was warned, just before starting, that the train was coming. The evidence tended to show that there was no sign near the crossing with the warning, "Look out for the cars;" that no bell was rung or whistle blown on the locomotive; and that the train was running at the rate of eight miles per hour, the lawful rate being six. Held:

(1) There was no error in admitting evidence of the absence of the warning sign, or in refusing to instruct the jury that the railroad company was under no obligation to sound a whistle for the crossing.

(2) Nor was it error for the court to refuse to instruct the jury that the speed of the train was not the proximate cause of the accident.

(3) The question of the contributory negligence of the deceased was properly left to the jury. Seefeld v. C., M. & St. P. R. Co. 70 Wis. 216, distinguished.

it."

3. A witness, M., testified that he told the deceased, as he was starting, that the train was coming, and that he replied, “I can make Several other witnesses, who were present and would have seen M. had he been there to say this to the deceased, testified that they did not see him, and that they remained there all the time from the arrival of the deceased to his death. Held, that this court cannot say, as a matter of law, that the jury were bound to believe the testimony of M. as against the other testimony.

APPEAL from the Circuit Court for Winnebago County. The action was brought by John Winstanley, as administrator of the estate of Robert Winstanley, deceased, to recover damages for the death of his intestate, alleged to have been caused by the negligence of the defendant's employees. The plaintiff had a verdict for $1,500, and from the judg ment thereon the defendant appealed. The facts are stated in the opinion.

For the appellant there was a brief by John T. Fish, attorney, and Burton IIanson, of counsel, and oral argument by Mr. Hanson. They contended, inter alia, that the undisputed evidence showed that the deceased was guilty of

Winstanley, Adm'r, etc. vs. The Chicago, Milwaukee & St. Paul R. Co.

negligence. Even if the witness Martin did not warn him as he says he did, that the train was coming near at hand, the deceased was still bound to do what was needful to ascertain whether it was safe for him to cross the track before driving his team dangerously near to it. Seefeld v. C., M. & St. P. R. Co. 70 Wis. 216; Salter v. U. & B. R. R. Co. 75 N. Y. 273; Gorton v. E. R. Co. 45 id. 660; Mantel v. C., M. & St. P. R. Co. 33 Minn. 62; Union P. R. Co. v. Adams, 19 Am. & Eng. R. Cas. 376; Ilaas v. G. R. & I. R. Co. 47 Mich. 401; Griffin v. C., R. I. & P. R. Co. 68 Iowa, 638.

For the respondent there was a brief by Weisbrod, Harshaw & Nevitt, attorneys, and Gabe Bouck, of counsel, and oral argument by Gabe Bouck and A. W. Weisbrod. They argued, among other things, that the deceased, being lawfully on the premises, had a right to rely upon the performance by those on the locomotive not only of every act imposed by law upon them when approaching a crossing, but also that they would at least use ordinary care in the management of the train. See cases cited in appellant's brief in Seefeld v. C., M. & St. P. R. Co. 70 Wis. 219; Strong v. Placerville R. Co. 8 Am. & Eng. R. Cas. 273; Ditberner v. C., M. & St. P. R. Co. 47 Wis. 138. It cannot be held, as a matter of law, that it was the duty of the deceased to have gone forward to see if a train was approaching, but this, in connection with the surrounding circumstances, at most, was a question of fact for the jury. Duffy v. C. & N.W. R. Co. 32 Wis. 269; Urbanek v. C., M. & St. P. R. Co. 47 id. 59; Eilert v. G. B. & M. R. Co. 48 id. 606; Dolan v. D. & H. Canal Co. 71 N. Y. 285; Strong v. Placerville R. Co. 8 Am. & Eng. R. Cas. 273; Guggenheim v. L. S. & M. S. R. Co. 57 Mich. 488; Roberts v. C. & N. W. R. Co. 35 Wis. 679; Petty v. II. & St. J. R. Co. 28 Am. & Eng. R. Cas. 618. The fact that a person attempting to cross a railroad does not at the instant of, or immediately before, stepping on the track

Winstanley, Adm'r, etc. vs. The Chicago, Milwaukee & St. Paul R. Co.

look or ascertain if a train is coming, is not conclusive evidence of a want of care on his part. His omission to do so should be submitted to the jury. Plummer v. Eastern R. Co. 73 Me. 591, 6 Am. & Eng. R. Cas. 165; Ind. & V. R. Co. v. McLin, 8 Am. & Eng. R. Cas. 237; Chaffee v. B. & L. R. Corp. 104 Mass. 108; Sherry v. N. Y. C. & II. R. R. Co. 104 N. Y. 652; Greany v. L. I. R. Co. 101 id. 419; Nosler v. C., B. & Q. R. Co. 73 Iowa, 268. In the following cases, similar to the one at bar, it was held not to be error to submit the question of contributory negligence to the jury. Pittsburg, C. & St. L. R. Co. v. Martin, 8 Am. & Eng. R. Cas. 253; Hutchinson v. St. P., M. & M. R. Co. 19 id. 280; Klanowski v. G. T. R. Co. 21 id. 648; Loucks v. C., M. & St. P. R. Co. 31 Minn. 526; Tyler v. N. Y. & N. E. R. Co. 137 Mass. 238; Kellogg v. N. Y. C. & H. R. R. Co. 79 N. Y. 72; Petty v. H. & St. J. R. Co. 28 Am. & Eng. R. Cas. 618. See, also, Ferguson v. W. C. R. Co. 63 Wis. 145; Bonnell v. D., L. & W. R. Co. 39 N. J. Law, 189; Sonier v. B. & A. R. Co. 141 Mass. 10. In the absence of evidence to the contrary the presumption is that a person looked and listened. Schum v. Penn. R. Co. 107 Pa. St. 8.

ORTON, J. This action is to recover damages which the respondent sustained by the death of his son Robert, which was caused by the negligence of the appellant company, and the plaintiff recovered $1,500. The main facts were as follows: The railroad runs nearly north and south through that part of the city of Oshkosh, and there is a side or spur track which runs in the same direction, quite a long distance by, and to accommodate, several mills and manufacturing establishments. On the west side of said track there is a large building used for a glazing-shop, 120 feet long and 50 feet wide, with a platform running along the east side, six feet and four inches wide, and within two feet and eight inches of the west rail of the spur track.