Opinion of the Court.

WRIT OF ERROR to the Circuit Court of Marion county; the Hon. SILAS L. BRYAN, Judge, presiding.

Mr. HENRY C. GOODNOW, for the plaintiff in error.

Messrs. CASEY & DWIGHT, for the defendant in error.

Per CURIAM: This was an action brought by defendant in error, against the city of Centralia, for injuries received in consequence of being thrown from his wagon, in going over a defective crossing, while his horses were running away. The jury found for the plaintiff a verdict of $30, for which the court gave judgment.

Counsel for plaintiff in error denies the liability of municipal corporations for injuries arising from the bad condition of streets, but so far as chartered cities are concerned, the question is not an open one in this court.

We see no grounds for reversing this judgment. The instructions properly gave the law to the jury, and although the evidence, as to the condition of the crossing, is conflicting, the jury have passed upon it, and there is no good reason for disturbing their verdict. They were certainly not actuated by prejudice or passion, as is evident from the very moderate damages they allowed.

It is urged, that one of the plaintiff's horses had, on several occasions, run away. We do not, however, think this fact, of itself, is a conclusive reason why the plaintiff should not recover, and the court below called the attention of the jury to this circumstance, in one of the instructions given for the defendant, and left it to them to weigh it, in connection with the alleged negligence of the defendant. Almost all horses are liable to take fright and run away, and we can not lay it down as a legal proposition, that a plaintiff, in a case like the present, can not recover, merely because he is driving a pair of horses, one of which has, on various occasions, run away, if he has used reasonable care and diligence at the time the

Syllabus.

accident occurred. The degree of negligence involved, in driving a horse that has before run away, can be properly left to the determination of the jury, as was done in the present

case.

Judgment affirmed.

ILLINOIS CENTRAL RAILROAD COMPANY

v.

JESSE L. ABLE.

1. RAILROADS-carrying passengers beyond the proper station. If a railway passenger, holding a ticket entitling him to alight at a particular station, is carried past such station without his consent, and without being allowed a reasonable opportunity of leaving the train, he has an action against the company for whatever damages may have accrued to him for non-delivery at the place of his destination.

2. SAME-where passenger leaves the train while in motion. But if such passenger voluntarily leaps from the train when in rapid motion, or leaves it under circumstances which would necessarily or probably render such an act perilous, and receives bodily injury, he could not recover damagés for the injury, because it would be the result of his own want of ordinary

care.

3. Though in case the passenger is not allowed a reasonable opportu nity to alight, there being a slight stoppage of the train, but he attempts to do so after the train has resumed its motion, but before the motion has become at all rapid, and the stepping from the train would not seem dangerous to a man of ordinary prudence and judgment, and nevertheless bodily injury follows, in such case the passenger would be entitled to recover damages for the injury,—the passenger having a right to construe the momentary halt of the train, at the station, as an invitation to alight, and in his attempt to make use of such opportunity when not attended with apparent danger, being chargeable with no appreciable negligence, in comparison with the flagrant breach of duty on the part of the company in neglecting to afford a reasonable opportunity to leave the train in safety. 4. JURY-finding a verdict by compromise. Where a jury in their retirement, in considering their verdict, as appeared from the affidavit of the officer having them in charge, after agreeing to find for the plaintiff, but

Opinion of the Court.

differing widely as to the amount of damages, agreed that each juror should privately write upon a slip of paper the amount of damages to which he thought the plaintiff entitled, and put the slip in a hat, and that the sum obtained by adding the amounts together and dividing by twelve, should be their verdict, which was done, and a verdict returned accordingly: Held, that while jurors may resort to such a process as a mere experiment, and for the purpose of ascertaining how nearly the result may suit the views of the different jurors, yet a preliminary agreement, that such a result shall be their verdict, will vitiate a verdict found under and by virtue of such an agreement; and although one of the jurors swore there was considerable consultation after the process, and that each juror agreed upon the result thus reached as his verdict, it was still regarded that the verdict had been found under the pressure of the agreement.

APPEAL from the Circuit Court of Effingham county; the Hon. H. B. DECIUS, Judge, presiding.

Mr. GEORGE W. WALL, for the appellant.

Mr. O. B. FICKLIN, JOHN SCHOLFIELD, and Messrs. WOOD & BARLOW, for the appellee.

Mr. CHIEF JUSTICE LAWRENCE delivered the opinion of the Court:

If a railway passenger, holding a ticket entitling him to alight at a particular station, is carried past such station without his consent, and without being allowed a reasonable opportunity of leaving the train, he has an action against the company for whatever damages may have accrued to him for non-delivery at the place of his destination. But on the other hand, if he voluntarily leaps from the train when in rapid motion, or leaves it under circumstances which would necessarily or probably render such an act perilous, and receives bodily injury, he could not recover damages for the injury, because it would be the result of his own want of ordinary care. Cases might occur, however, in which a reasonable opportunity to alight has not been given to a passenger, and where he attempts to do so after the train has resumed its motion, but before the motion has become at all rapid, and the stepping from the train would not seem dangerous to a man

Opinion of the Court.

He

of ordinary prudence and judgment, and nevertheless bodily injury follows; in such cases the passenger would be entitled to recover damages for the injury, because the railway company has committed a flagrant breach of duty, and the passenger is chargeable with no appreciable negligence. has a right to construe the momentary halt of the train at the station as an invitation to alight, and to make use of the opportunity thus afforded where not attended with apparent danger, holding the company responsible if it does not furnish reasonable time to leave the train with safety.

The action of the court in giving, refusing, and modifying instructions, was in substantial accordance with these principles.

It is urged, that the verdict is not sustained by the evidence, but we refrain from the consideration of that point, as there is another upon which the case must be sent to another jury. It appears, by the affidavit of the officer having in charge the jury, that after agreeing to find for the plaintiff, they differed widely as to the amount of damages, and it was then agreed that each juror should privately write upon a slip of paper the amount of damages to which he thought the plaintiff entitled, and place the slip in a hat; that the amounts should then be added together, and their sum divided by twelve, should be the verdict. This was done, and a verdict returned accordingly.

It is true, a juror swears that there was considerable consultation after this was done, and that each juror agreed upon the result thus reached, as his verdict. He does not, however, deny that an agreement was made, such as is stated in the officer's affidavit, and we can not doubt it was that agreement which controlled the amount of the damages. The rule upon this matter is well settled. It is, that while jurors may resort to a process of this sort as a mere experiment, and for the purpose of ascertaining how nearly the result may suit the views of the different jurors, yet a preliminary agreement that such a result shall be the verdict, will vitiate a verdict found

Syllabus. Statement of the case.

under and by virtue of such an agreement. Dunn v. Hall, 8 Black f. 32; Dana v. Tucker, 4 J. R. 487; Harvey v. Rickett, 15 J. R. 87.

This rule is so reasonable, as to need no comment.

As this verdict was evidently found under the pressure of such an agreement, the judgment must be reversed and the cause remanded.

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Judgment reversed.

MARGARET KESLER et al.

v.

WILLIAM PENNINGER.

1. INFANTS can only appear by guardian. It has been held that a minor can only appear to defend a suit by guardian, and not in person or by attorney.

2. GUARDIAN AD LITEM must be appointed. It is clearly the duty of courts to appoint a guardian ad litem for minor defendants, when there is not a guardian appearing and defending for them. And in such a case it is error to proceed to trial without appointing a guardian ad litem.

WRIT OF ERROR to the Circuit Court of Union county; the Hon. JOHN H. MULKEY, Judge, presiding.

This was an action of ejectment, brought by William Penninger against Margaret Kesler and others, to recover the possession of certain premises, of which the plaintiff claimed to be the owner in fee. A trial by jury resulted in a verdict and judgment for the plaintiff. The defendants bring the record to this court.

Mr. JOHN DOUGHERTY, for the plaintiffs in error.

Messrs. CRAWFORD & WARE and Mr. G. W. WALL, for the defendant in error.