stock, 112 Mass. 268; Towle v. Quante, 246 Ill. 568.) Under this rule the parties in this case were the same in this action as in the former ejectment proceeding, so far as the admission of said deposition was concerned.

But counsel for appellees further contends that Peeler was an interested party, being grantor in the warranty deed, and therefore could not testify against appellees, as representatives of William Stephens, deceased. It is sometimes stated that a grantor in a deed containing covenants of title cannot testify in any case in which the validity of the title is involved. (King v. Worthington, 73 Ill. 161; Hamilton v. Doolittle, 37 id. 473; Holton v. Dunker, 198 id. 407.) These and other like decisions are based on the theory that it would be to the grantor's interest to maintain the title which he had covenanted to make good. There can be no question that where the effect of the covenant is to bind the witness to indemnify the party calling him against the consequences of some fact essential to the judgment, under the authorities he does have such an interest as to disqualify him from testifying against the interests of the deceased. (I Greenleaf on Evidence,-Lewis' ed.-sec. 397.) this is not an ordinary case as to a grantor testifying with reference to the title in himself. Peeler would be liable on his covenants the same whether the true grantee were Stephens or Gillespie. His interest, if any, in the result of the suit was equally balanced, and, so far as we can see from the present record, how it was decided would be a matter of indifference to him, so far as his liability was concerned. Under these circumstances he is not legally interested in the result of the suit. This court has held upon a somewhat similar state of facts that if the witness' interest is so equally balanced that his mind is in a state of equipoise, leaving him indifferent to the result, he is competent. (Baker v. Updike, 155 Ill. 54; White v. Ross, 147 id. 427.) The deposition of Peeler was not admitted in

But

evidence improperly because of either of the grounds urged in the cross-errors.

Certain other questions have been raised in the briefs, but as they will not arise on the next trial we deem it unnecessary to decide them.

For the error in refusing to admit the testimony of the witness Gillespie the judgment is reversed and the cause remanded to the circuit court.

Reversed and remanded.

V. T. HARTZELL, Appellee, vs. THE ALTON, GRanite and ST. LOUIS TRACTION COMPANY, Appellant.

Opinion filed April 23, 1914.

1. RAILROADS-act relating to fencing and operation of railroads applies to interurban railroad operating as a commercial railroad. The act in relation to the fencing and operation of railroads applies to an interurban railroad operating as a commercial railroad in carrying passengers and express from town to town, as respects portions of its right of way not in a public highway, even though. the company is organized under the general Incorporation act as a street railroad.

2. SAME-duty to fence right of way is absolute. The duty of a commercial railroad to fence its right of way where it runs through private property is absolute, and it cannot urge as a defense to an action for killing stock of the owner of the private property that the latter was guilty of contributory negligence in letting his stock run at large on his land knowing that the right of way through it was not fenced.

APPEAL from the Appellate Court for the Fourth District;-heard in that court on appeal from the Circuit Court of Madison county; the Hon. W. E. HADLEY, Judge, presiding.

WILLIAMSON, BURROUGHS & RYDER, for appellant.

D. H. MUDGE, for appellee.

Mr. JUSTICE CARTER delivered the opinion of the court: This suit was commenced by appellee before a justice of the peace in Madison county to recover damages and attorneys' fees on account of the killing of his cow while she was on the track of appellant. Judgment was there entered against appellant. On appeal to the circuit court of Madison county judgment was again entered against appellant. The Appellate Court, on appeal, affirmed the judgment of the circuit court and granted a certificate of importance to this court.

The evidence shows, without contradiction, that the appellant operated an electric railway between the cities of Edwardsville, in Madison county, and St. Louis, Missouri, passing through Pogue, Mitchell, Nameoki, Madison, Granite City and East St. Louis; that both passenger and express cars were used in its operation; that the road ran through parts of the counties of Madison and St. Clair, in this State.

The principal question argued in the briefs is whether appellant is subject to the requirements of "An act in relation to fencing and operating railroads," in force July 1, 1874. (Hurd's Stat. 1911, p. 1824.) At the point in the country where the accident happened the railway right of way was on its own private property and not on a public highway. This right of way at this point was not fenced.

Appellant was organized under the general Incorporation act as a street railroad. The purpose for which a corporation is organized usually can best be ascertained by reference to the terms of its charter. (Evanston Electric Illuminating Co. v. Kochersperger, 175 Ill. 26.) The same corporation, as to its charter powers, under our statutes cannot be both a street railway and a commercial railway. (Bradley Manf. Co. v. Chicago and Southern Traction Co. 229 Ill. 170, and cases cited.) Commercial railroads embrace railroads for all freight and passenger traffic between one town and another or between one place and another.

They are usually not constructed upon streets and highways, except for short distances. Street railways embrace all such railroads as are operated upon public streets for the purpose of conveying ordinary passengers, with hand baggage, from one place to another on the street. (I Lewis on Eminent Domain,-2d ed.-sec. 110a; Wilder v. Aurora, etc. Traction Co. 216 Ill. 493.) "The mere location of a railroad does not determine its character as a street railway or otherwise. Whether a railroad be a street railroad or not depends on the character of its traffic or service." (3 Dillon on Mun. Corp.—5th ed.-sec. 1258; Spalding v. Macomb and Western Illinois Railway Co. 225 Ill. 585.) A distinctive feature of a street railway is, that it is intended to be used for the transportation of passengers and not of freight. The main test is, that street railways are used for local convenience and street travel. (1 Elliott on Railroads,—2d ed.—secs. 6, 7; Harvey v. Aurora and Geneva Railway Co. 174 Ill. 295.) "Intermediate between street railways within a municipality, which are intended merely for local convenience and to facilitate travel from point to point within the municipality or the suburban districts immediately adjacent thereto, and the steam railroad, intended for general commerce between the different cities and places without respect to distance, a species of railroad has been developed by the use of electric power which embraces some of the characteristics of both the ordinary street railway and the general steam or commercial railway." (3 Dillon on Mun. Corp.-5th ed.-sec. 1258.) These are generally denominated interurban railways, and are usually held to partake to some extent of the characteristics of both street railways and commercial railroads. In cities and towns they resemble street railways in most respects. In the country, in recent years, they are constructed on road-beds similar to those of steam railroads, and it is frequently stated by the authorities that they are becoming more and more like commercial railroads, many of them carrying mail, express and

light freight and some of them heavy freight. (Booth on Street Railroads,-2d ed.-sec. 431; Baldwin on American Railroad Law, sec. 6.) Interurban electric roads, as that term is generally used, might well be regarded as a third or distinct class of railroads. (1 Lewis on Eminent Domain, 3d ed.-sec. 150.) In Cincinnati Electric Railroad Co. v. Lohe, 68 Ohio St. 101, it was held that an interurban railroad, though classed as a street railway by the statutes of that State, should have applied to it, in its operation outside of municipalities, similar rules of law as applied to steam or commercial railroads under like circumstances. In McNab v. United Elevated Railroad Co. 94 Md. 719, it was held that such street railroads as lie in the open country must in many respects be operated as if they were commercial railroads and corresponding precautions taken.

The

The meaning of the word "railroad" in any act can only be determined by reference to the context and the manifest intention of the legislature. (1 Elliott on Railroads,— 2d ed.-sec. 6.) The question whether the term "railroad" would include a street railroad has often been raised. answer must depend upon the character of the statute and the purpose for which it was enacted. (Riggs v. St. Francis County Railway Co. 96 S. W. Rep. 707.) "In a statute prohibiting the placing of obstructions upon railroad tracks, or insisting upon the exercise of peculiar care to prevent injury to passengers or to persons at crossings, or fixing the liability for the consequences of a negligent operation of the road, the term 'railroad' is considered to comprehend street railways as well." (I Wood on Railroads, sec. 1.) Elevated roads in this State, although incorporated under the general Railroad act, have been held, when operated in the streets of a city, for some purposes and in a certain sense to be street railways instead of ordinary commercial railroads. Doane v. Lake Street Elevated Railroad Co. 165 Ill. 510; Cummings v. Union Elevated Railroad