barrows, which made it necessary for Thompson to place one foot upon the elevator, the fellow-servant rule had no application to the case.

It will be noted that in all of the above cases there was an element of danger connected with the carrying out of the order delivered which the vice-principal ought to have foreseen, and it is this element of danger connected with obedience to the command that gives the order its negligent character. A servant is presumed to accept responsibility for an injury which is caused by one of the ordinary and usual risks of the employment, and negligence cannot be predicated upon an order which merely exposes him to such a risk. (Labatt on Master and Servant, sec. 437.) In other words, an order by the master to the servant to do some act or perform some service which was included within the general scope of his duties under his contract of hiring could not ordinarily be regarded as a negligent order which would absolve the servant from the assumption of the ordinary and usual risks incident to the execution of the order given. The mere circumstance that an order is given in such case does not conceal dangers that were open and obvious before, or render involuntary the assumption of a risk which was incident to and a part of the servant's regular work and which he must be held to have contemplated and assumed when he engaged in the service. (Wilson v. Tremont and Suffolk Mills, 159 Mass. 154; 34 N. E. Rep. 90; Swiercz v. Illinois Steel Co. 231 Ill. 456.) If it be conceded that Johnson, as foreman, had the authority to request or command the defendant in error to go into the car, make up his trip-sheet and bring the same and the money to him on the front vestibule of the car, and that it was the duty of the defendant in error to obey this request, still there is wanting that element of danger in obeying this command necessary to give it the character of a negligent order. It is well known that conductors upon street cars, as well as passengers, frequently

stand upon the platforms or vestibules of cars, and it has never been held, so far as we are advised, that it is negligence either in the employees or passengers to be or stand upon the vestibule of a moving car. The ordinary and usual duties of a conductor of a street car require him to frequently be upon the vestibule of the car in his charge. It would be going much farther than this court has ever gone, to hold that it is negligence in a conductor of a street car to go to the front or rear vestibule of the car in the discharge of his usual duties. If defendant in error of his own initiative had made up his trip-sheet and gone to the front vestibule to deliver it to Johnson in the discharge of his duty and preparatory to leaving the car for the night, could it be said, either as a matter of fact or of law, that he was guilty of such contributory negligence that he could not recover for an injury if he had been thrown from the car by reason of a defective track or some other act of negligence for which the plaintiff in error was responsible? Such conclusion, it seems to us, could not be sustained. If under these circumstances defendant in error would not be guilty of contributory negligence, then how can it be said. that the order of Johnson to do the thing which he might properly have done without such order was a negligent order? The injury here cannot, therefore, be said to be the result of a negligent order of the vice-principal in combination with his negligence as a fellow-servant. There was no negligent order in this case with which the negligence of Johnson, as fellow-servant, could combine to produce the injury. This case cannot be controlled by the rule laid down in the Nadebok and Thompson cases, supra.

Our conclusion upon the whole case is that the court erred in not directing a verdict in favor of plaintiff in error, first, because the evidence shows that the defendant in error knew, before the injury, of the inexperience and incompetency of Johnson as a motorman and voluntarily elected to go out on the car with him; second, Johnson

and defendant in error were fellow-servants, under both branches of the rule, at the time of the injury, which resulted proximately from the negligence of Johnson in not properly running the car.

The judgments of the superior court of Cook county and of the Appellate Court for the First District are reversed and the cause remanded to the superior court of Cook county. Reversed and remanded.

CATHERINE HARNEY, Appellee, vs. THE SANITARY DISTRICT OF CHICAGO, Appellant.

Opinion filed October 28, 1913.

1. DAMAGES―amount of damages in action for permanent injury to land from overflow is a question of fact. In an action for damages for permanent injury to land from overflow the amount of damages sustained is a question of fact for the jury, and the judgment will not be reversed upon the ground that the damages awarded are excessive unless the verdict is palpably the result of passion or prejudice and manifestly against the preponderance of the evidence.

2. SAME measure of damages in a suit for permanent injury to land. The measure of damages in an action to recover for permanent injury to land from overflow, due to the opening of a sanitary district channel, is the difference between the fair cash market value of the land immediately prior to the time the water was turned into the channel and its fair cash value after the channel was opened.

3. INSTRUCTIONS-what statement in an instruction is unnecessary but harmless. While the Sanitary District of Chicago must be assumed to know the natural flow of water in the Desplaines and Illinois rivers, yet its liability for permanent damage to land from overflow, due to the opening of its channel, does not depend upon its knowledge or consideration of such natural flow, and a statement in an instruction to the effect the district was bound to know and consider such condition is unnecessary but not harmful.

4. SAME when a party cannot complain that statement in an instruction is not based upon the evidence. Where both parties

to an action for permanent damage to land from the opening of the channel of the Sanitary District of Chicago assume, in their instructions, that sewage was carried by the channel into the Illinois river, neither party can be heard to complain that there is no direct proof in the record that any sewage passed into the river.

5. SAME when failure of an instruction to fix time when fair cash value of land is to be estimated is not fatal. In an action against the Sanitary District of Chicago for permanent injury to land, the failure of an instruction to definitely fix the time when the fair cash value of the land was to be estimated or the time when the depreciation therefrom should be shown is not fatal, where the instruction states the essential elements of a recovery and the omitted detail is not only an uncontroverted point in the case but is accurately set out in other instructions.

6. EVIDENCE maps, plats and gauge readings from the war department are not incontrovertible evidence. Maps, plats and gauge readings from the records of the war department of the United States, even though they may be competent evidence tending to show the stage of water in the streams to which they refer, are merely evidence to be considered with all the other evidence in the case and are not incontrovertible proof of the facts which they tend to establish.

APPEAL from the Circuit Court of Marshall county; the Hon. T. N. GREEN, Judge, presiding.

FRANK J. QUINN, and JOHN DAILEY, (EDMUND D. ADCOCK, and Walter E. BeebE, of counsel,) for appellant.

BARNES & MAGOON, for appellee.

Mr. JUSTICE VICKERS delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Marshall county entered in favor of Catherine Harney, against the Sanitary District of Chicago, for permanent damages resulting to certain lands of appellee by reason of the construction and putting in operation the sanitary district channel on January 17, 1900. The lands involved are a sixty-eight acre tract, being one full forty-acre tract and twenty-eight acres off the east side of another forty ad

joining it on the west. The lands are situated along what is known as the Lacon and Sparland road, which leads from the town of Sparland to a bridge across the Illinois river and thence to the town of Lacon. The twenty-eight acre tract is improved with a two-story brick house, two corncribs and a chicken house. The improvements are located about two blocks east of a railroad depot and elevator in Sparland. The forty-acre tract is immediately east of the twenty-eight acres, and its eastern boundary is about onehalf mile from the Illinois river. The lands were all fenced and under cultivation except a few acres along the east side, on which some willows were growing. The cultivated lands were well adapted to the growth of corn, oats and wheat. Appellee became the owner of these lands in 1895. She rented the lands until 1899, at which time she and her husband, William Harney, moved onto the farm and commenced to cultivate it. On January 17, 1900, the appellant turned into the Illinois river the waters of Lake Michigan and the sewage of the city of Chicago. The claim upon which appellee bases her right to recover damages is, that the effect of turning the waters of Lake Michigan into the Illinois river through the sanitary district channel was to raise the level of the water in the Illinois river to a higher level than it would be in a state of nature, thus causing the river to back out into Gimlet creek, overflowing its banks and spreading over appellee's lands. While there were other pleas, the only controverted issue is that formed by appellant's plea of not guilty. The jury assessed appellee's damages at $3000, and judgment for that amount was rendered upon the verdict.

Appellant limits its brief and argument to three questions: (1) That the verdict is excessive and against the weight of the evidence; (2) that the court gave improper instructions on behalf of plaintiff; and (3) that appellee's counsel were guilty of improper conduct in the course of the trial.