duty in that regard and without taking necessary precautions, appellee infected appellant and four of his minor children with said disease, from which they became dangerously ill, etc. The second count was substantially like the first count, except that it stated the case with a little more elaboration and detail. The damages were laid at $2500. After issue joined a trial was entered upon with a jury, and during the progress of the trial appellant asked and was granted leave to amend the second count of the declaration. What was filed in pursuance of that order "by way of amendment" is not an amendment to the second count of the declaration, but is a new and complete count within itself. Said count avers that appellant learned appellee was treating a person afflicted with small-pox on the 27th day of December, 1904, and on that day notified appellee to cease treating appellant's wife and desist from visiting appellant's house; that thereupon appellee assured appellant he had not entered the house of the small-pox patient and would not do so, but that he had treated him by seeing him through a window from the outside, and would so continue to do, and that there was therefore no danger of communicating the disease from the small-pox patient to appellant or his family. The declaration avers that, relying upon these assurances, appellant permitted appellee to continue his visits to his house for the treatment of his wife until her death, which occurred January 5, 1905; that the assurances and representations of appellee that he had not entered the house and room in which the small-pox patient was confined were false and untrue; that he had entered said house and room and continued to do so until the death of the patient, January 1, 1905, and that in consequence thereof he caused appellant and four of his minor children to contract said contagious disease of small-pox. The damage laid in this count also was $2500. Appellee demurred to this count of the declaration and the court sustained the demurrer. The trial proceeded to a conclusion under the amended declaration and issue joined

thereon, and resulted in a verdict for appellee, upon which the court rendered judgment. Appellant appealed to the Appellate Court, where the judgment of the circuit court was affirmed, and he prosecutes this further appeal to this court.

No certificate of importance was granted by the Appellate Court. Appellee has entered a motion to dismiss the appeal for the reason that, the judgment being less than $1000 exclusive of costs, the judgment of the Appellate Court is final and no appeal could be prosecuted therefrom. Appellant contends that there was no trial on an issue of fact under the amended count, to which the court sustained a demurrer, and that as the damages alleged therein exceeded $1000, the latter clause of the provision of section 8 of the Appellate Court act authorizes the appeal. (Hurd's Stat. 1905, p. 601.) That provision is as follows: "And provided further, that in all actions where there was no trial on an issue of fact in the lower court, appeals and writs of error shall lie from the Appellate Courts to the Supreme Court where the amount claimed in the pleadings exceed one thousand dollars ($1000)."

A similar question was passed upon in Robards v. Wabash Railroad Co. 194 Ill. 361. Appellant insists that that case is not conclusive of the one at bar, for the reason, as he says, "the count demurred to stated a different cause of action from that stated in the first count, and presented an issue of fact in the circuit court in which there was no trial." It is true, the amended count avers that appellee was permitted to continue his visits to appellant's house by reason of false representations that appellee had not been in the house and room of the small-pox patient and would not enter therein; but said amended count, like the original counts, counted on damages claimed to have been sustained by appellant by reason of appellee infecting his family with the small-pox. In the Robards case there were counts in the declaration charging the defendant with negligently and carelessly doing the things which caused the damage com

plained of, and other counts charging it with recklessly and willfully committing said acts. A demurrer was sustained to the counts charging negligence and carelessness and a trial had under the counts charging the acts complained of were recklessly and willfully committed. There was a verdict and judgment in that case for the defendant, which, on appeal to the Appellate Court, was affirmed. Plaintiff prosecuted a further appeal to this court, which was dismissed. for want of jurisdiction. We think the case analogous in principle to the one at bar and conclusive against appellant's right to prosecute this appeal.

The appeal is therefore dismissed.

Appeal dismissed.

CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY

V.

JOSEPH RATHNEAU.

Opinion filed February 21, 1907.

I. TRIAL—when refusal to direct a verdict is proper. Refusal to direct a verdict for the defendant railroad upon the ground that the negligence which caused plaintiff's injury was that of a fellowservant is properly refused, where there is evidence tending to show that such person was in control of and directing the work of the gang of which the plaintiff was a member, even though there is no evidence that such person had power to hire and discharge the men.

2. MASTER AND SERVANT—when servant is not bound to disobey foreman. A servant is not bound, in law, to either refuse to obey the foreman's particular order to do work in a dangerous manner or assume the hazard by obeying, unless the danger is so imminent that a man of ordinary prudence would not have incurred the risk.

3. SAME―liability of the master for representative's negligence. Where a master authorizes one of his employees to take control of a. certain class of workmen in carrying on some particular work, such employee, in directing the men thus under his charge, with respect to the particular work, represents the master and is not a mere fellow-servant of the others; his commands, within the scope of his authority, are, in law, the commands of the master, and if he

is guilty of a negligent or unskillful exercise of his authority, it is the same, in law, as though the master was guilty of such conduct. (Baier v. Selke, 211 Ill. 512, distinguished.)

4. EVIDENCE-general objection is not sufficient unless evidence is wholly inadmissible. A general objection to the admission of evidence is not sufficient to sustain an assignment of error upon its admission, unless the evidence objected to was inadmissible for any

purpose.

5. INSTRUCTIONS—when giving instruction stating abstract rule of law is not error. While an instruction stating a correct rule of law as a mere abstract proposition may be refused without error, yet it is not error to give it if it is not misleading.

APPEAL from the 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.

BENJAMIN S. CABLE, for appellant.

JAMES C. MCSHANE, for appellee.

Mr. JUSTICE VICKERS delivered the opinion of the court:

This was an action on the case begun in the superior court of Cook county. The declaration consisted of one count, in which it was averred, in substance, that the plaintiff, April 18, 1902, was employed by the defendant as a laborer to work with a certain gang engaged in loading iron rails on a flat-car at Blue Island; that the defendant had a foreman in charge of plaintiff and said other laborers engaged as aforesaid, whose orders it was their duty to obey, and who was not plaintiff's fellow-servant but was a viceprincipal of the defendant; that plaintiff and his co-laborers, by the direction of said foreman, placed two long iron rails with one end of each on the flat-car and the other ends thereof on the ground, said rails to be used as skids in skidding rails from the ground onto the car and loading the car; that after said rails to be so used were placed, said foreman negligently so placed a stake in the side and at one end of

said car so high that it would strike and tip the rails while being skidded from the ground onto the car, thereby rendering the work extraordinarily dangerous; that while said stake was so placed said foreman negligently ordered plaintiff and his co-laborers to skid said rails onto the car, and while, in obedience to said order, they were skidding a rail from the ground onto the car, and while plaintiff was exercising ordinary care for his safety, one end of the said rail came in contact with the stake, and the rail was turned over, slid down the skid, and caught and crushed so severely the plaintiff's ankles that they have become and are permanently crippled and their usefulness is permanently impaired, etc. The appellant company filed a plea of not guilty. Upon a hearing the jury found the issues for the appellee. A motion for new trial was overruled and judgment in the sum of $12,500 was entered on the verdict. An appeal was prosecuted to the Appellate Court for the First District, where the judgment was affirmed, and the record is before us by a further appeal prosecuted by the appellant.

At the close of all the evidence the appellant company filed a motion for a peremptory instruction to take the case from the jury, which was overruled, and it is here urged the court erred in such ruling. It is insisted by the appellant company that if the appellee "was injured by the act of some other person or by the negligence of any one than himself, this other person was either O'Rourke or some other member of the gang, and in either event a fellow-servant."

The injury occurred on the 18th day of April, 1902. The appellee, at the time of the injury, had only been in the employ of the appellant company for nine days. The evidence shows that on the first eight days of his employment he was engaged in other work. On the day of the injury appellee was directed to help in loading rails upon a flat-car, and he had never been engaged in such work before that time. The car onto which the rails were being loaded stood north and south. The rails were old ones which had been taken up