Tate continued to live with the Essons but the situation was unpleasant. He testified that he was not noticed and I was like a hermit in the house; that Esson and his wife. either refused to converse with him or gave him short answers; that he could not learn what was going on about him; that if he was sitting in one room they would go into another, and that he could not hear a piece of common newspaper gossip. This condition of affairs continued until August, 1910, when Tate, having made up his mind that he was not wanted, left the Esson home and went to Chicago to reside with his daughter Mrs. Britton. In February, 1911, he filed the original bill herein to set aside both the deed of October 12, 1907, and the agreement of May 26, 1910, on the ground that they were unfair and inequitable and were obtained by undue influence and unfair advantage taken of the relation between the parties.

The evidence shows no reason for setting aside the deed. It was the voluntary act of the grantor, made entirely on his own initiative, without the request or suggestion of any other person and without the previous knowledge of the grantee. No influence or persuasion is even remotely suggested by the evidence, and the decree properly dismissed the bill so far as the deed is concerned.

The agreement stands on a different footing. The four notes against Samuel Esson were the unquestioned property of William Tate. The answer of Samuel Esson and Sarah J. Esson admits that they were given for loans of money and were payable and owing to Tate, and that he delivered them to Sarah J. Esson to be kept and preserved for him. A demand, made after more than two years, for their return was refused, without justification or legal excuse of any kind. It is true that the claim was made by the daughter that her father had promised to give the notes to her at his death and only to require the payment of interest during his life; but even if this were so, she had no right to keep the notes to compel the per

formance of a promise which was not binding on him and which he was at liberty to observe or disregard, as he chose. For five or six months before the agreement was executed he was demanding the notes and his daughter was claiming that she was entitled to them. There was a good deal of controversy, and he was much wrought up about it and threatened to sue for the notes. The son-in-law told him that he would never get the notes until he made some agreement, since he had lied about giving the notes to his daughter. After the demand through an attorney failed to secure a return of the notes Clapsaddle arranged for the meeting at which the agreement was made. He was not acting as a representative of Tate but of his own volition, as an intermediary or common friend. He was not trying to secure the notes for Tate, as the latter desired, but thought it best that they should remain deposited with some other person. He thought it best for Tate to remain with the Essons and neither leave their home nor engage in litigation with them. He procured Price, of his own. motion, to attend the meeting. No one at that meeting was representing Tate or looking after his pecuniary interest. The plan of the agreement was Clapsaddle's, Price was the scrivener, and the dominant idea of everybody but Tate was that it was for his interest to continue to live with his daughter, to avoid litigation about the notes and to have the notes in other hands than his own. In the negotiation which followed, if it should be called negotiation, it is not unnatural that the old man, past ninety years of age, in the darkness of total blindness, hard of hearing and feeble, standing alone, finally succumbed to the advice pressed upon him and yielded the whole controversy. He got nothing. He was then living with his daughter and son-in-law and paying them $200 a year, the amount specified in the agreement. He agreed to continue this payment and in addition to give them $3150 at his death. He surrendered the whole issue for which he had been con

tending for months, and it is manifest that the power of his mind to resist was overcome by the weight of the opposition, and he finally consented to an agreement which represented the will of the other parties and not his own. Without regard to any question of fiduciary relationship, an unfair agreement obtained by taking advantage of such a situation ought not to be allowed to stand. The inequality of the parties in the negotiation, the injustice of the contract and the circumstances under which it was made indicate that the agreement did not have the intelligent assent of William Tate but was procured by the undue influence of his daughter and son-in-law and unfair advantage taken of him.

The decree of the circuit court will be affirmed as to the deed of October 12, 1907, but in all other respects it will be reversed and the cause will be remanded, with directions to enter a decree setting aside the contract of May 26, 1910; requiring the payment by Samuel Esson of $3150, with five per cent interest thereon from March 1, 1910, to Emily F. Britton, executrix of the last will and testament of William Tate, deceased, and authorizing execution therefor; requiring David Price to pay to Emily F. Britton, executrix of the last will and testament of William Tate, deceased, the sum of $100 paid by Samuel Esson on March 1, 1911, on the obligation for the payment of $100 annually to William Tate during his life, mentioned in the receipt of David Price hereinabove mentioned and authorizing execution therefor; also requiring David Price to deliver to Emily F. Britton, executrix as aforesaid, the said obligation of Samuel Esson for the payment of $100 annually to William Tate during his life.

Reversed and remanded, with directions.

RICHARD PETERSON, Defendant in Error, vs. THE CHICAGO AND OAK PARK ELEVATED RAILROAD COMPANY, Plaintiff in Error.

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

I. MASTER AND SERVANT-rule concerning safe place to work is limited to keeping the premises physically safe. The rule requiring the master to use reasonable care to furnish his servant a reasonably safe place in which to work has reference only to the master's duty to keep the premises physically safe, and to nothing else.

2. SAME when giving instruction as to safe place to work is prejudicial. Giving an instruction stating the correct rule that it is the duty of the master to exercise reasonable care to furnish the servant a reasonably safe place in which to work is prejudicial to the defendant in an action by a servant for injuries, where the instruction is inapplicable to the facts and brings to the attention of the jury a ground of recovery not alleged in the declaration and having no existence in fact.

3. SAME fellow-servants—when a previous relation and acquaintance are not material. Where there is direct co-operation between servants of the same master in a particular work the relation of fellow-servants exists without regard to the questions of their previous relation or acquaintance or the length of time they have worked together.

4. SAME when the relation of fellow-servants exists. Where a switch repairer on an elevated railroad is assisting a motorman in the employ of the same master to move a car by holding an insulated wire against the car and the third rail, so as to supply electric power while the motorman operates the controller and reverses the motor, there is direct co-operation in the particular work and the men are fellow-servants as to such transaction.

5. INSTRUCTIONS-defendant entitled to an instruction calling jury's attention to the exact issue. The defendant in an action for damages for personal injuries is entitled to have an instruction given which calls the jury's attention to the exact issue in the case under the pleadings and the evidence.

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

CHARLES LEROY BROWN, for plaintiff in error.

C. HELMER JOHNSON, and DANIEL BELASCO, for defendant in error.

Mr. JUSTICE DUNN delivered the opinion of the court:

Richard Peterson recovered a judgment for $10,000 against the Chicago and Oak Park Elevated Railroad Company for personal injuries, which judgment the Appellate Court affirmed, and the record has been brought here by certiorari for review.

The railroad company operated a double-track electric elevated railroad running east and west in Lake street, across the Chicago river, in the city of Chicago, the electrical power being supplied through a third rail. In Market street, the first street east of the river, was a single track branch extending from Lake street south to Madison street, on which was operated a single passenger car, called a "shuttle car," which made trips from Madison street north on Market street to Lake street, then west on Lake street to Canal street, the first street west of the river, and back again to Madison street on the same track. On Lake street it used, both ways, the south railroad track, which was the track used by all west-bound trains. A towerman operated the switches from a tower at Lake and Market streets. The plaintiff below was twenty-one years old at the time of the accident and had worked for the defendant about eleven months,-five months at track repairing and six months on interlocking work, all of the time on the elevated structure, and he was thoroughly acquainted with the tracks and switches at Lake and Market streets and the manner of running the trains and doing the work. The shuttle car coming north on Market street was turning west into Lake street when O'Neal, the bridgeman, ordered it to stop and back up into Market street to let a west-bound