(Court of Appeals of New York. March 1, 1892.) George W. Stephens, for appellants. George Bliss, for respondents.

No opinion. Order affirmed, with costs. All concur, except EARL, C. J., and PECKHAM, J., dissenting, and GRAY, J., not voting. See 16 N. Y. Supp. 794.

In re LINEY'S ESTATE.

(Court of Appeals of New York. March 1, 1892.) Cassius C. Davy, for appellants. John H. Hopkins, for respondents.

No opinion. Judgment affirmed, with costs. All concur. See 16 N. Y. Supp. 382,

mem.

GARONI, Respondent, v. COMPAGNIE NATIONALE DE NAVIGATION OF MARSEILLES, Appellant.

(Court of Appeals of New York. March 1, 1892.) Esek Cowen, for appellant. Edward C. James, for respondent.

No opinion. Judgment affirmed, with costs. All concur, except EARL, C. J., and PECKHAM, J., who dissent on the ground that the charge to the jury was erroneous as to the degree of care resting upon the defendant. See 14 N. Y. Supp. 797.

BRUEN, Respondent, v. MANHATTAN RY. Co. et al., Appellants.

(Court of Appeals of New York. March 1, 1892.) William R. Page, for appellants. Stanley W. Dexter, for respondent.

No opinion. Order affirmed, with costs. All concur. See 14 N. Y. Supp. 788.

(Court of Appeals of New York. March 8, 1892.) J. & Q. Van Voorhis, for the motion. Louis Marshall, opposed.

No opinion. Plaintiff's motion for reargument denied, $10 costs. See 29 N. E. Rep. 999.

R. Co., Appellant.

ion. March 8, 1892. Wm. E. Hobby, for appellant. mond, for respondent.

John Des

No opinion. Judgment affirmed, with costs. All concur. See 9 N. Y. Supp. 225.

GARLOCK, Appellant, v. MARKHAM, Respondent.

(Court of Appeals of New York, Second Division. March 8, 1892.)

mond, for respondent. J. S. Garlock, for appellant. John Des

No opinion. Judgment affirmed, with costs. All concur. See 9 N. Y. Supp. 565.

BRIGGS, Respondent, v. GROVES, Appellant. (Court of Appeals of New York, Second Division. March 8, 1892.) John D. Lynn, for appellant. Isaac S. Signor, for respondent.

No opinion. Judgment affirmed, with costs. All concur, except HAIGHT, J., absent. See 9 N. Y. Supp. 765.

KENYON, Appellant, v. LUTHER et al., Respondents.

(Court of Appeals of New York, Second Division. March 8, 1892.)

Porter & Walts, for appellant. Watson M. Rogers and Elon R. Brown, for respondents.

No opinion. Judgment affirmed, with costs. All concur. See 10 N. Y. Supp. 951,

mem.

MACDONALD et al., Appellants, v. WALLSTEIN et al., Respondents.

(Court of Appeals of New York, Second Division. March 8, 1892.)

Blumenstiel & Hirsch, for appellants. Benno Loewy, for respondents.

No opinion. Judgment affirmed, with costs. All concur.

COPP, Appellant, v. HOLLINS et al., Respondents.

(l'ourt of Appeals of New York, Second Divis-, ion. March 8, 1892.)

Robert P. Harlow, for appellant. John R. Dos Passos, for respondents. No opinion. Judgment affirmed, with costs.

pellants.

(140 Ill. 474) CLEVELAND, C., C. & ST. L, RY. Co. v. MONAGHAN.1

(Supreme Court of Illinois. March 28, 1892.) RAILROAD COMPANIES - ACCIDENTS AT CROSSINGS -TRIAL-MISCONDUCT OF JURY-PHOTOGRAPHS IN EVIDENCE-REMOVAL OF CAUSES - PETITION -BOND.

1. In an action against a railway company for causing the death of plaintiff's intestate at a crossing, an instruction that if the deceased approached the crossing with due care, and if defendant did not ring a bell or sound a whistle, as required by Rev. St. 1891, c. 114, § 68, such an omission of duty is in itself, in the absence of all negligence on the part of the deceased, such negligence as to make defendant liable, is not objectionable, as holding defendant liable for the mere omission of the statutory duty, without requiring the jury to find that such negligence contributed to the accident, when such instruction is so supplemented by other instructions given that the jury could not have been led to conclude that the defendant was liable for any negligence which did not cause or contribute to the injury.

2. A jury delivered an unsealed verdict to the bailiff, without permission, the court having adjourned, and then separated. The next morning, when the jury was called, one of the jurors was absent, having been excused for the day by the court. On the following day the jury was again called, and, all the jurors being present, they affirmed their former verdict. Held, that such irregularity was not cause for a new trial, in the absence of proof of any injury resulting therefrom.

3. In a case where it was a material question whether or not the view of the train which killed the deceased was obstructed by box cars then standing on a side track, and by other objects near the crossing, it is not error to refuse to admit in evidence photographs of the locality, taken two months after the accident, by a mere amateur photographer, who had never visited the locality before, especially when the court admitted a plat which showed the situation of the permanent objects at the place of the accident.

4. A petition for the removal of a cause to a federal court, under Act Cong. March 3, 1887, providing for removal when "there shall be a controversy which is wholly between citizens of different states," which avers that the plaintiff is a resident of Illinois, is defective, the terms "citizen" and "resident" not being synonymous.

5. Where the bond filed with a petition for removal is not the bond of the petitioner, and there is no evidence as to the responsibility of the obligor, it is insufficient.

6. An affidavit of a surety on such a bond, which fails to state that the affiant has property subject to execution in the district, and that he is a resident of the state, is insufficient.

Appeal from appellate court, fourth district.

Action on the case by James Monaghan, administrator of the estate of Joseph Monaghan, deceased, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, to recover damages for the death of the deceased by reason of de fendant's negligence. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant appeals. Affirmed.

John T. Dye and Geo. F. McNulty, for appellant. John G. Irwin, for appellee.

MAGRUDER, C. J. This is an action on the case, brought by the appellee, as ad

Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

ministrator of Joseph Monaghan, deceased, against the appellant company, to recover damages for the death of the deceased, caused by a collision on September 3, 1890, between a freight train on appellant's road and a wagon which deceased was driving, at a point where a public highway crossed said road. Verdict and judgment in the trial court were in favor of the plaintiff, and the judgment has been affirmed by the appellate court.

The declaration avers, among other things, that, at the time and place of the accident, freight cars were standing upon the side track, and extending into the highway north and south of it, so as to prevent persons approaching the crossing from seeing a train running upon the main track; that the train, which collided with the wagon, was moving at the unusual speed of 35 miles an hour; that no bell was rung or whistle sounded, or kept ringing or sounding, for 80 rods from the crossing; that, by reason of such speed and obstructions, and failure to ring a bell or sound a whistle, the locomotive and train were driven against the deceased while upon the crossing.

The third instruction given for the plaintiff is complained of as being erroneous upon the alleged ground that it held the mere failure to ring a bell or sound a whistle to be such negligence as made the defendant liable, without at the same time requiring the jury to find that the negligence in question contributed to the happening of the accident. It is said that, upon the authority of Railway Co. v. Jones, 76 Ill. 311, and other cases, the omission of the duty thus imposed by the statute will not render a railroad company liable, unless it is made to appear that the ringing of the bell or sounding of the whistle might have prevented the injury. If the instruction was erroneous in the respect thus indicated, it could not have done the defendant any harm, in view of its explanation and qualification by other instructions which were given. The trial court gave six instructions for the plaintiff, and twenty-five for the defendant. These instructions should be regard as one charge, and should be considered together. Construing them as a whole, the jury could not have been led to conclude that the defendant was liable for any negligence which did not cause or contribute to the accident. For example, the first instruction given for the plaintiff required the jury to find from the evidence that "the causes of said collision were the obstructions upon said side track, the rate of speed of said train, and the failure to ring a bill or sound a whistle, or keep a bell ringing or whistle sounding as aforesaid.

99

Alleged misconduct of the jury is assigned as error. The cause was submitted to the jury late in the afternoon of Tuesday, November 18, 1890. They reached a conclusion at 10 o'clock upon the night of that day, finding the defendant guilty, and assessing plaintiff's damages at $1,000. They reduced their verdict to writing, and it was signed by the foreman. They also reduced to writing their answers to written questions by the