at the place where Hausler was killed, when properly insulated, is free from danger from the contact therewith of other wires, but if it is not properly insulated there is great danger of injury to a person holding a wire which comes in contact with a wire charged with electricity, as was the wire of appellant at the time Hausler was killed. The part of the wire of the appellant which was not properly insulated was at a joint in the wire, and the wire at that point was of the same size and color as other portions of the wire and was some thirty feet from the ground above Hausler when he passed beneath said joint, and the defective insulation thereof would not readily be observed by a person passing beneath the wire.

We think it clear from the foregoing statement of facts that this court cannot say, as a matter of law, that the appellant was not guilty of negligence in permitting said joint to remain exposed in a public alley of the city of Chicago, and between two poles upon which, immediately beneath said wire, it was known to the appellant that the employees of the telephone company would be required, in the course of their employment, to string the wires of the telephone company, or that Hausler, as a matter of law, can be said to have been guilty of such contributory negligence as to bar a recovery. Electricity is a silent, deadly and instantaneous force, and a person or company handling it is bound to know the dangers incident to its use in a public street or alley, and is bound to guard against accident by a degree of care commensurate with the danger incident to its use. (Rowe v. Taylorville Electric Co. 213 Ill. 318.) We do not think the trial court erred in declining to take the case from the jury.

It is also urged in this court that the trial court erred in overruling the motion in arrest of judgment made by the appellant. That question seems to have been raised in this court for the first time and without the ruling of the court

upon that motion having been assigned as error in this or the Appellate Court. Such practice is not permissible.

Finding no reversible error in this record the judgment of the Appellate Court will be affirmed.

Judgment affirmed.

LAURA S. WILKINSON, Exrx., Appellee, vs. THE ÆTNA LIFE INSURANCE COMPANY, Appellant.

Opinion filed April 23, 1909-Rehearing denied June 3, 1909.

1. INSURANCE—plaintiff must show that fatal injuries resulted from accident. In an action on an accident policy, where it is admitted the insured died as the result of injuries effected by violent and external means, the plaintiff has the burden of showing that the injuries were accidental and not self-inflicted; but such fact may be established by circumstantial evidence, in connection with the rebuttable presumption that the injuries were not self-inflicted.

2. SAME when question whether injuries were accidental is for the jury. The rebuttable presumption of law that all men are sane and have a natural desire to avoid personal injuries or death may, when taken with an admission that the injuries causing the death of the insured were caused by external means and when not rebutted by proof or the circumstances in evidence surrounding the death, be sufficient to require the court to submit to the jury the question whether or not the injuries were accidental.

3. SAME―an accident policy construed as covering injuries received from burning of contents of building. An accident policy providing for double indemnity if the insured receives fatal injuries "in consequence of the burning of a building in which the insured shall be at the commencement of the fire," covers a case where the fatal injuries were received by the insured from a fire in the contents of the building in, which he was when the fire began, as well as from the burning of the building itself.

4. SAME―when it is presumed that an injury was accidental. Where the evidence shows that the insured has suffered an injury which has caused his death, and there is no proof in the record from which it can be determined whether the injury was accidental or self-inflicted, the presumption is that the injury was accidental. 5. SAME-proof of habits and temperament of insured is co petent. In an action on an accident insurance policy, proof of the habits and temperament of the insured is competent upon the ques

com

tion whether the injuries received by him were accidental or intentionally self-inflicted; and if defendant files a plea presenting the defense of suicide, it is not error to permit proof of such habits and temperament as evidence in chief.

APPEAL from the Appellate Court for the First District;-heard in that court on appeal from the Superior Court of Cook county; the Hon. BEN M. SMITH, Judge, presiding.

FLANNERY & MCKINLEY, for appellant:

The party holding the affirmative of an issue must prove it by a preponderance of the evidence. To entitle the plaintiff to recover in this case it was necessary that it be alleged and proved that the injuries resulting in the death of the insured were effected through accidental means. Hinman v. Pope, 1 Gilm. 131; Wilbur v. Wilbur, 129 Ill. 392; Casualty Co. v. Weise, 182 id. 496; Laessig v. Protective Ass. 169 Mo. 272; Insurance Co. v. McConkey, 127 U. S. 661; Whitlatch v. Casualty Co. 149 N. Y. 45; Feder v. Traveling Men's Ass. 107 Iowa, 538; Carnes v. Traveling Men's Ass. 106 id. 281.

There is no presumption of law, in a suit on a policy of accident insurance, that injuries effected through external and violent means are effected through accidental means. Casualty Co. v. Weise, 182 Ill. 496; Laessig v. Protective Ass. 169 Mo. 272; Insurance Co. v. McConkey, 127 U. S. 661; Whitlatch v. Casualty Co. 149 N. Y. 45; Carnes v. Traveling Men's Ass. 106 Iowa, 281.

Neither the fact that defendant pleaded that the injuries were self-inflicted, nor the presumption of law against selfinflicted injuries, relieved plaintiff from the burden of proving they were effected through accidental means. Laessig v. Protective Ass. 169 Mo. 272; Casualty Co. v. Weise, 182 Ill. 496; Insurance Co. v. McConkey, 127 U. S. 661; Whitlatch v. Casualty Co, 149 N. Y. 45; United States v, Ross, 92 U. S. 281.

One presumption or inference cannot be based upon another presumption or inference, but must be founded upon a fact or facts actually proven by direct evidence. Insurance Co. v. Gerisch, 163 Ill. 625; Condon v. Schoenfeld, 214 id. 226; Kevern v. People, 224 id. 170; United States v. Ross, 92 U. S. 281; Manning case, 100 id. 693.

In the absence of evidence to the contrary, a person is presumed by the law to be in the possession and full enjoyment of the normal faculties of mind and body. This includes the senses of sight, smelling, hearing and feeling. The insured, while in the loft of the barn, is presumed by the law to have been in possession of these senses. Green v. Railroad Co. 122 Cal. 563.

When a person is in his right mind, capable of controlling his actions and directing his course, the law presumes his acts voluntary. Follis v. Accident Ass. 94 Iowa, 435.

There was no evidence in this case to overcome the presumption of law that the insured was conscious from the time he last was seen going towards the barn until he was found by the firemen, an hour and a half later, and that the acts, if any, of the insured while in the loft of the barn. were voluntary.

Where a presumption of law is disregarded by a jury a new trial should be granted ex debito justitiæ. Insurance Co. v. Insurance Co. 107 U. S. 485.

The plaintiff having failed to establish, by a preponderance of the evidence, that the injuries resulting in the death of the insured were effected through accidental means, the negative is presumed. Bank v. Baldenwick, 45 Ill. 375; Watt v. Kirby, 15 id. 200; Schroeder v. Walsh, 120 id. 403; Bonnell v. Wilder, 67 id. 330.

SAMUEL ADAMS, and CARL R. LATHAM, for appellee: Proof of death from unexplained violent and external means raises a presumption that such death was caused by accidental means. Insurance Co. v. McConkey, 127 U. S.

661; Insurance Co. v. Fielding, 35 Colo. 19; Guldenkirch v. Accident Ass. 5 N. Y. Supp. 428; Peck v. Accident Ass. 5 id. 215; Warner v. Accident Ass. 8 Utah, 431; Jones v. Accident Ass. 92 Iowa, 652; Couadeau v. Accident Co. 95 Ky. 280; Insurance Co. v. Milward, 118 id. 716; Insurance Co. v. Sheppard, 85 Ga. 751; Insurance Co. v. Thornton, 100 Fed. Rep. 582; Jenkins v. Insurance Co. 131 Cal. 121; Meadows v. Insurance Co. 129 Mo. 76; Cronkrite v. Insurance Co. 75 Wis. 116; Lumpkin v. Insurance Co. II Colo. App. 249.

There is a presumption against suicide and the intentional self-infliction of injuries. I May on Insurance, (2d ed.) 325; 4 Joyce on Insurance, 3773; 4 Cooley on Insurance, 3212, 3255.

That death occurred through accidental means may be shown by the facts and circumstances of the case as well as by the testimony of eye-witnesses. Mallory v. Insurance Co. 47 N. Y. 52; Insurance Co. v. Goddard, 76 S. W. Rep. 852; Insurance Co. v. Stough, 83 id. 126; Casualty Co. v. Freeman, 109 Fed. Rep. 847; Lewis v. Accident Co. 79 N. E. Rep. 802; DeVan v. Accident Ass. 92 Hun, 256; Insurance Co. v. Bennett, 90 Tenn. 256; Landon v. Insurance Co. 43 App. Div. 487.

In cases of unexplained death by violent and external means, where the inquiry is whether such death was also caused by accidental means, the habits, temperament and family relations of the deceased are all competent evidence. Such evidence tends to negative the possibility that the injuries were intentionally self-inflicted and supports the conclusion that they were sustained by accidental means. Casualty Co. v. Weise, 182 Ill. 496; Lacssig v. Protective Ass. 169 Mo. 272; Insurance Co. v. Fielding, 35 Colo. 19; Casualty Co. v. Freeman, 109 Fed. Rep. 847; Insurance Co. v. Milward, 118 Ky. 716; Insurance Co. v. Bennett, 90 Tenn. 256; Insurance Co. v. Ayres, 217 Ill. 390; Wright v. Insurance Co. 29 Upper Can. C. P. 221.