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firming that of the trial court as to the service of such notice is conclusive.

The further contention is made that the judgment is excessive. Ordinarily this court has nothing to do with the amount of the judgment when it has been approved by the Appellate Court. (City of LaSalle v. Kostka, 190 Ill. 130; Chicago, Rock Island and Pacific Railway Co. v. Steckman, 224 id. 500.) The basis upon which the trial court figured out the amount of this judgment has not been preserved. Counsel for appellants state that if there is evidence to show that the property was worth $176.85 a month rent, then the amount of this judgment can be sustained. There is evidence tending to show that it was worth more than this amount. It is true, this question is controverted; but here, as in the other questions noted above, this court cannot interfere on this point in the present state of the record. In this connection it is also contended that interest cannot be included in the finding. This point was not raised on the motion for new trial or in the assignment of errors and cannot now be raised on appeal. Bank of Commerce v. Miller, 202 Ill. 410; Lasher v. Colton, 225 id. 234; Wickes v. Walden, 228 id. 56.

Appellants also contend that even if they are liable, on the facts in this record, for the double rent, appellees cannot recover, as the premises were leased to Kolacek, and that if any rental is due, Kolacek is the one entitled to it. With this contention we do not agree. It will be noted that under the lease to Kolacek his term did not begin until April 1, 1901,—three months after the expiration of the appellants' lease. The contemporaneous agreement with Kolacek, heretofore referred to, provided specifically that the possession should not pass to Kolacek during the time appellees were prevented from delivering the possession of the premises by the action of appellants. The lease and agreement must be considered together, as they were executed at the same time. (Wilson v. Roots, 119 Ill. 379; Gardt v. Brown, 113 id. 475.) This conclusion does not conflict with that in Gassolo v. Chambers, 73 Ill. 75, cited by appellants, the facts in the two cases being entirely different.

As the evidence justifies the finding of the trial court holding appellants liable for double rent, it is unnecessary for us to discuss the question whether the $20 a day provided in the lease should be considered as a penalty or as liquidated damages.

We find no reversible error in the record, and the judgment of the Appellate Court will therefore be affirmed.

Judgment affirmed.



Opinion filed October 23, 1907Rehearing denied Dec. 10, 1907.

1. MISJOINDER—when question of misjoinder is waived. In a joint action against a street railway company and the receivers of another company for negligence, if the defendants, upon the trial, admit that the former company owns the tracks and that the receivers were operating the road at the time of the injury, and counsel for defendants, in answer to a question by the court as to whether the effect of such admission was that if any one was to blame for the accident the plaintiff had the right people as defendants, states that he knows of nothing to the contrary, the question of misjoinder is waived, and cannot be raised after verdict by motion in arrest of judgment.

2. EVIDENCE-eye-witness may give opinion as to rate of speed car was traveling. A person who was present at the time of the collision between a street car and a wagon may express his opinion as to the rate of speed the car was traveling, and his testimony should not be stricken out because he states, on cross-examination, that he knew the car was going at a certain rate of speed “because I know it to go very fast out there."

3. SAME—when expert testimony is properly allowed to stand. Testimony of a physician who treated the plaintiff for his injury and who has examined him before the trial, to the effect that the plaintiff was lame, had curvature of the spine and degeneration of the spinal cord, should not be stricken out because he has been guided, to some extent, in his conclusion as to the degeneration of the spinal cord by what the plaintiff has said to him.

4. STREET RAILWAYS—street railway company does not have exclusive right to use of its tracks. In an action for injuries sustained by a street car striking a wagon in which the plaintiff was riding upon the track, an instruction is proper which states that a street railway company does not have the exclusive right to the use of its car tracks in the city.

5. Same-effect where driver of wagon in which plaintiff was riding was negligent. The fact that the driver of a wagon in which another person is riding upon a street car track is negligent does not relieve the street car company from liability to such person in case of a collision between a street car and the wagon, if the street railway company is also negligent and the person riding in the wagon is free froni negligence.

6. INSTRUCTIONS-instruction should not single out a particular fact. An instruction in a personal injury case is properly refused which singles out a particular fact from the evidence and informs the jury, ignoring the question of the defendant's negligence, that if they believed such fact to be proved by a preponderance of the evidence there could be no recovery.

APPEAL from the Branch Appellate Court for the First District ;-heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding

This was an action on the case commenced by Charles Muttschall against the West Chicago Street Railroad Company and James H. Eckels and two others, as receivers of the Chicago Union Traction Company, in the superior court of Cook county, to recover damages for a personal injury alleged to have been sustained by plaintiff in consequence of his being thrown to the pavement from a one-horse, twoseated open surrey in which he was riding upon one of the streets of the city of Chicago, by reason of said surrey being run against by an electric car operated upon the track of the West Chicago Street Railroad Company by the receivers of the Chicago Union Traction Company. The declaration contained one count, and each of the defendants filed the plea of the general issue. A trial resulted in a verdict and judgment in favor of the plaintiff for $9000, which has been affirmed by the Branch Appellate Court for the First District, and a further joint appeal has been prosecuted to this court by the defendants.

The evidence introduced by the plaintiff fairly tended to show that the plaintiff, at about seven o'clock on the evening of the third of May, 1903, was riding east upon

North avenue, in the city of Chicago, between Forty-fourth and Forty-fifth avenues, in a two-seated open surrey, drawil by one horse, in company with his brother-in-law, Gustav Natzke, the owner of the horse and surrey, who was driving at the time of the accident; that Natzke and plaintiff occupied the first seat and Mrs. Natzke and her child the rear seat; that as they were riding between Forty-fourth and Forty-fifth avenues they were overtaken by an electric car running at a high rate of speed, which struck the surrey from the rear with great force; that the surrey was capsized, the wheels broken off and it was otherwise damaged, and plaintiff and the other occupants thereof were thrown to the pavement and the plaintiff was severely injured; that there was a double track at the place of the injury, with ditches upon either side thereof; that the east-bound track was the south track, upon which Natzke was driving at the time of the injury. Mr. and Mrs. Natzke and the plaintiff all testified that the approaching car was not discovered by them until it was almost upon them, when Mrs. Natzke called out: “My God! there is a car right in back of us!" that Natzke attempted to turn the horse and surrey on to the north track, but the surrey was almost instantly struck by the car and thrown over and the persons therein thrown out, and that the car ran nearly a hundred feet after the collision before it was stopped.

The trial court, after overruling motions for a new trial and in arrest of judgment made by each of the defendants,

entered a judgment in the following form: “It is considered by the court that the plaintiff do have and recover of and from the defendants his said damages of $9000, in form as aforesaid by the jury assessed, together with his costs and charges in this behalf expended, and to be paid in due course of administration as receivers."

JOHN A. Rose, and ALBERT M. Cross, (W. W. GURLEY, of counsel,) for appellants.

John T. MURRAY, for appellee.

Mr. CHIEF JUSTICE Hand delivered the opinion of the court:

The first contention of the appellants is that the court erred in overruling their motion in arrest of judgment, on the ground that the West Chicago Street Railroad Company and said receivers of the Chicago Union Traction Company were improperly joined as defendants in said action, as it is said a joint judgment cannot properly be rendered against said defendants, as the judgment against the West Chicago Street Railroad Company should be against said railroad company personally, and the judgment against said receivers of the Chicago Union Traction Company should not be against said receivers personally, but to be paid by them in the due course of administration. If the contention of the appellants that the West Chicago Street Railroad Company and the receivers of the Chicago Union Traction Company cannot be sued jointly in this action for the reason suggested, had that question not been waived upon this record,

, be conceded to be sound, we think it clear that the appellants have waived their right to raise that question upon this record if they can waive it, and that they can waive such right we have no question. In this case the record shows that defendants admitted upon the trial that the car tracks on North avenue, at the point of the accident, were

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