ages for a temporary injury or for a continuing trespass, would be obnoxious to a general demurrer. So here, the demurrer to the plea of the Statute of Limitations raised the question of law whether under this declaration appellee was suing to recover damages for a permanent or temporary injury. To determine, then, whether the plea is bad on demurrer it is necessary to look to the declaration. The declaration, as above quoted, alleges that the lands of appellee were so situated that any waters artificially caused to flow into the Illinois river would cause an overflow which would prevent their use as farm lands and would destroy the crops thereon and any additional flowage would injure and destroy said timber. From this declaration it is apparent that the channel of the sanitary district is a permanent structure, and that it was connected with the Chicago river on January 17, 1900, and the water turned through the same into the Illinois river on that date. If, as is alleged in the declaration, any waters artificially turned into the Illinois river would cause such an overflow of the lands of appellee as to destroy their use as farm lands and to destroy the crops and timber thereon, it is apparent that appellee was permanently injured at the time the water was first turned into the Illinois river through its channel by appellant on January 17, 1900, and that this suit is for the recovery of damages for a permanent injury, and not for a temporary injury, as appellee contends. The plea of the Statute of Limitations was properly filed to this declaration, and the demurrer to the same should have been overruled.

Appellee relies upon Jones v. Sanitary District of Chicago, 252 Ill. 591, as sustaining his contention that the demurrer to the plea was properly sustained. There is a marked difference between the situation presented in this case and that presented in the Jones case, and the holding in the Jones case sustains the contention of appellant that the demurrer to the plea here should have been overruled. In the Jones case the declaration counted on temporary in

juries, only, and recovery was sought for damages occasioned during the five years next preceding the filing of the declaration. The plea of the Statute of Limitations interposed to the declaration in that case set out at length the special facts which were relied upon as a bar, but it did not appear, either from the declaration or from the plea, that the continuance and operation of the channel of appellant would necessarily result in injury to the lands of appellee, and it was held as the turning point in that case, that where the continuance and operation of a permanent structure are not necessarily injurious but may or may not be so, then only the injury sustained prior to the commencement of the suit may be compensated in that suit. The converse of this proposition is true, viz., that where the continuance and operation of a permanent structure are necessarily injurious, then damages for all the injury sustained must be recovered in one suit. In the case at bar the declaration expressly alleges that any additional water caused to flow artificially into the Illinois river would prevent the use of appellee's lands as farm lands and would injure and destroy his crops and his timber, from which it must follow that the continuance and operation of the sanitary district channel are necessarily injurious to the lands of appellee, and he must recover for all damages, past, present and future, in one action. The declaration in the Jones case contained no such allegation, but, on the contrary, it was so drawn as to expressly negative such an allegation.

The allowance of attorneys' fees is objected to upon the ground that said section 19 of the Sanitary District act, which provides for attorneys' fees, is unconstitutional and void. This same question was presented in Gentleman v. Sanitary District, (ante, p. 317,) and was there decided contrary to the contention of appellant.

Other questions are raised and argued which will probably not arise on a new trial, and as the judgment must be

reversed for the error of the court in sustaining the demurrer to the plea they will not be considered.

The judgment of the superior court is reversed and the cause remanded to that court, with directions to overrule the demurrer to the plea of the Statute of Limitations. Reversed and remanded, with directions.

ANNA HEIDENREICH, Defendant in Error, vs. David F. BREMNER, JR. et al. Plaintiffs in Error.

Opinion filed October 28, 1913-Rehearing denied Dec. 4, 1913. ·

tort.

I. PARTNERSHIP-all partners need not be joined in action for An action for personal injury, due to the negligence of an employee of a partnership, may be brought against the co-partnership as a firm or against any or all of the partners individually, even though the partnership has become a corporation since the cause of action accrued.

2. PRACTICE when refusal to instruct the jury to disregard counts is proper. Instructions to disregard certain counts of the declaration in a personal injury case are properly refused, where they fail to call the attention of the court or the jury to any alleged defects in such counts.

3. NEGLIGENCE—whether negligence was willful or wanton is a question of fact. Whether a personal injury has been inflicted. by gross or wanton negligence is a question of fact to be determined by the jury and is largely dependent upon the particular circumstances of each case.

4. SAME-willful negligence does not require proof of ill-will toward injured person. To constitute willful or wanton negligence it is not necessary to prove that the defendant was actuated by ill-will toward the person injured, but it is sufficient to show that the defendant acted with reckless indifference to consequences and without any care for the life, person or property of others.

5. SAME drivers of horses must use greater care at crossings than elsewhere. Drivers of horses are bound to use a greater degree of care at street crossings in the business portion of a city, where large numbers of persons are constantly using the crossings, than in other portions of the street or at less used crossings.

6. SAME when question of willful negligence is properly left to the jury. Whether the defendants' driver was guilty of an act of willful negligence is a question which is properly left to the jury, where there is evidence, though contradicted, that he was driving a heavy team and wagon at such a rapid rate of speed over a busy street crossing that he was unable to stop the team after they had run over a child at the crossing until they had gone some forty feet beyond the place of the accident.

7. SAME-failure to look before starting to cross street is not negligence per se. Failure of a person to look for approaching vehicles before starting across a street at a public crossing is not necessarily negligence per se under all circumstances.

8. SAME when contributory negligence is no defense. Contributory negligence is no defense to an action for personal injury, where the evidence shows that the negligence of the defendants' servant which caused the injury was willful and gross.

9. STARE DECISIS-a rule of law once settled should not be lightly departed from. Stability and uniformity of decisions conduce so much to the public welfare that when a rule of law contravening no statute or constitutional principles has once been settled it should be followed, unless it can be shown that serious detriment to public interests is likely to arise unless the rule is departed from.

WRIT OF ERROR to the Branch "D" Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. THOMAS G. WINDES, Judge, presiding.

BURTON & KANNALLY, and CHARLES LEROY BROWN, for plaintiffs in error.

QUIN O'BRIEN, and O. A. ARNSTON, for defendant in

error.

Mr. JUSTICE CARTER delivered the opinion of the court: This was an action brought by the defendant in error, by her father as next friend, in the circuit court of Cook county, to recover for damages for personal injuries alleged to have been sustained by her April 25, 1907, from being knocked down and run over by a team and wagon. After

the issues were joined a trial was had, and the jury found a verdict in favor of defendant in error, upon which judgment was entered. That judgment was affirmed on appeal to the Appellate Court, and the case has been brought here by writ of certiorari.

The suit was started against Bremner Bros. Thereafter, on leave of court, David F., James R., John B. and Vincent A. Bremner, doing business as Bremner Bros., were made parties defendant. The original declaration, consisting of two counts, was filed against the four Bremners as co-partners, doing business as Bremner Bros. To these counts defendants demurred, but the demurrer was never formally disposed of. Thereafter two amended additional counts were filed by leave of court. To these additional counts defendants filed a plea of general issue, and a further plea alleging that they "were not the owners and in control of certain horses and a certain wagon attached thereto, and were not then and there, by their servants, driving said team of horses attached to said wagon," etc. At the close of plaintiff's case, by leave of court, two additional amended counts were filed against said four partners doing business as Bremner Brothers. The defendants' plea of general issue, and the second plea heretofore set out, were allowed, by order of court, to stand as pleas to said last named counts. After verdict, but before judgment, the action was dismissed as to Vincent A. Bremner.

The accident occurred at the corner of Eighteenth street and Center avenue, in the city of Chicago, a little after seven o'clock in the evening. The evidence shows that this crossing was in a thickly populated business section of the city. The street car tracks extended along both Eighteenth street and Center avenue. There was a slight up-grade on Center avenue as one went toward the north, caused by a viaduct north of Eighteenth street and commencing about thirty feet south of that street. The space between the car tracks on Center avenue was paved with cobblestones.