defense. It was not error to overrule this motion and enter judgment by default.

This record discloses no error, and the judgment will be affirmed.

Judgment affirmed.

MARY KATH, Admx. Appellee, vs. THE EAST ST. LOUIS AND SUBURBAN RAILWAY COMPANY, Appellant.

Opinion filed December 17, 1907-Petition stricken Feb. 6, 1908.

1. EVIDENCE-When proof that the defendant changed conditions after accident is admissible. If no measurements of the distance between defendant's track and the trolly-support pole against which plaintiff's intestate struck were taken until some months after the accident, it is proper, when the defendant's witnesses have testified to such measurements, to allow the plaintiff to show that the pole was moved further from the track before the measurements were taken, not as an admission of liability by the defendant, but as tending to show the location of the pole at the time of the accident.

2. SAME when proof that crooked pole was set nearer to track than others is proper. Proof that the trolly-support pole against which plaintiff's intestate struck was bent inward toward the track and was set closer to the track than the other poles is competent, whether the question of the distance poles should be set from the track in an overhead trolly system railroad is an engineering question or not.

3. MASTER AND SERVANT-when interurban conductor assumes risk of injury from crooked pole. A conductor on an interurban railroad who has been over the track daily for about eight months is charged with knowledge that a certain trolly-support pole has a bend in it towards the track and that there is a depression in the track which causes passing cars to sway toward the pole, and he must be held to have assumed the risk of injury from such conditions, in the absence of any question of a promise by the company to make repairs.

4. SAME when interurban conductor is guilty of contributory negligence. An interurban conductor who is killed by his head striking a trolly-support pole as he leaned from the front platform of an empty car, where he was riding with the motorman, to look back at a crossing to see whether the car had run over any chick

ens, instead of looking through the rear door, as he might have done with safety, is guilty of contributory negligence in choosing the unsafe way of performing his act.

5. SAME servant may assume risks due to master's negligence. A servant assumes all hazards incident to his employment which are obvious and apparent or which are known to him, even though such conditions are produced by the master's negligence, if he continues in the employment without any promise by the master to remedy the defects.

6. INSTRUCTIONS—when an erroneous instruction is not cured by correct one. An instruction which positively lays down, as a rule of law, a proposition directly in conflict with the correct rule as stated in another instruction is not cured by the correct instruction, since it is impossible in such case to say which instruction was followed by the jury.

FARMER, J., dissenting; CARTER and VICKERS, JJ., specially concurring.

APPEAL from the Appellate Court for the Fourth District;-heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. HOLDER, Judge, presiding.

This was an action on the case commenced in the circuit court of St. Clair county by the appellee, against the appellant, to recover damages for the death of her brother and intestate, alleged to have been caused by the negligence of the appellant. A trial resulted in a verdict and judgment in favor of the appellee for the sum of $2500, which judgment has been affirmed by the Appellate Court for the Fourth District, and a further appeal has been prosecuted to this court.

The declaration contained two counts, which alleged, in substance, that the defendant, on the sixth day of December, 1904, and for a long time prior thereto, was possessed of and operating a line of electric railway in Madison and St. Clair counties, on which railway the defendant was on the said date operating certain cars for the conveyance of passengers for hire; that along its said line of railway the

defendant possessed and used a certain line of poles to support the arms to which were attached wires on which electricity was conducted for the purpose of operating its said cars; that on said day the plaintiff's intestate was in the employ of the defendant as a conductor on one of its said cars on that part of its line of railway between Maryville and Edwardsville, in the county of Madison; that it was the duty of the defendant to use reasonable care to see that its road equipment and apparatus were in a reasonably safe condition, but the defendant, not regarding its duty in that behalf, negligently caused one of its said poles a short distance north of Maryville, in the county of Madison, to be placed too near the track, and negligently permitted said pole to incline inward toward the track, and negligently permitted a low place to be and remain under the rail adjacent to said pole, which said negligent location of said pole and said low place under said rail brought the cars passing over said track in dangerous proximity to the said pole, which said condition of said pole and track was known to the defendant or should have been known to it by the use of ordinary care, but was not known to the plaintiff's intestate and could not have been discovered by him by the use of ordinary care, by reason whereof the plaintiff's intestate, while in the exercise of due care and caution for his own safety, in the performance of his duties as such conductor in charge of one of defendant's cars, in passing said pole on said line of railway, while looking out of said car in the performance of his duty, was struck by said pole and was thereby killed. The general issue was filed.

At the close of all the evidence the defendant requested the court to instruct the jury to return a verdict in its favor, which the court declined to do, and the action of the court in that regard has been assigned as error.

It appears from the evidence that Antone Kath, appellee's intestate, was on December 6, 1904, a conductor upon a car of the electric railway owned and operated by appel

lant, running from Edwardsville, in Madison county, to French Village, in St. Clair county. Appellant's cars were operated by means of what is called the "overhead trolly" system, that is, poles were set along and near to the track of appellant's railway, and from them arms extended out over the center of the track from which the trolly wire was suspended. Appellant's sheds were about a mile north of the village of Maryville, and in these sheds its cars were stored at night. French Village was about ten miles south of these sheds, and between these sheds and French Village appellant operated a car daily, called the "French Village Special." This car would leave the sheds in the morning for French Village and take on miners along the route for the purpose of carrying them to the mines at or near French Village, where they were employed, and then return to the sheds and in the evening it would return to French Village for the purpose of bringing the miners back from their places of employment to their homes. The deceased entered appellant's employment in April, 1904, as a motorman and worked principally in that capacity but occasionally acted in the capacity of a conductor, and was so acting at the time he received the injury which caused his death. Walter Bruening was on that occasion acting as motorman. On the afternoon of December 6, 1904, Bruening as motorman and deceased as conductor were assigned to run the French Village Special. They were to take the car from the Maryville sheds and go to French Village for the purpose of bringing miners back to their places of residence along the line, after which they were to return the car to the sheds. They started from the sheds on the trip south without any passengers, and no one was on the car at the time of the accident except the motorman and the deceased. As they proceeded south from the sheds both were riding. on the front platform of the car. About a half mile south of the sheds appellant's track crossed the public highway. A flock of chickens belonging to Mrs. Plaputnik, who lived

near by, were on the crossing as the car approached it. The car ran through the flock and scattered them. As it did so the deceased remarked to the motorman, "I bet you have got that rooster," and thereupon leaned out to the east from the car to look back at the crossing. The poles supporting the arms from which the trolly wires were suspended were on that side of the car, and one of them struck the deceased's head, fracturing his skull, from which injury he died.

SCHAEFER, FARmer & Kruger, for appellant.

KEEFE & SULLIVAN, for appellee.

Mr. CHIEF JUSTICE HAND delivered the opinion of the

court:

It is first contended by appellant that the court erred in allowing appellee to prove the pole which struck and injured deceased had been moved farther back from the track after the accident. If this testimony had been offered for the purpose of showing an implied admission of appellant that it was in the first place negligently set too near the track it would have been incompetent and its admission erroneous. (Howe v. Medaris, 183 Ill. 288.) No measurements appear to have been taken by any one as to the distance the pole was from the track at the time of the accident, until long after its occurrence. Appellee proved the distance between the pole and the track by witnesses who measured it in June after the accident. This appears to be the earliest date at which any measurement was taken. Appellee was allowed to prove that after the accident and before these measurements were taken the pole was moved farther away from the track. One witness testified for appellee that at the time he took the measurements, six months or more after the accident, the distance between the rail of appellant's