(No. 11943.-Judgment affirmed.)

JOHN A. KELLY, Appellee, vs. THE CHICAGO CITY RAILWAY COMPANY, Appellant.

Opinion filed April 17, 1918-Rehearing denied June 7, 1918.

1. Negligence-when motion to exclude evidence and instruct the jury to find verdict of not guilty should be denied. In an action for negligence, if there is any evidence in the record from which, standing alone, the jury may reasonably find that the material averments of the declaration have been sustained, a motion, made at the close of the plaintiff's case and renewed at the close of all the evidence, to exclude the evidence and instruct the jury to find the defendant not guilty should be denied.

2. SAME-contributory negligence is a question of fact for the jury. It is not negligence per se for a street railway company to fail to stop a car on signal at a corner, and a motorman may rightfully assume, in rounding a curve, that an adult person standing near the track will draw back to avoid injury, but the question whether such person was guilty of contributory negligence is one of fact for the jury under proper instructions.

3. SAME when motion in arrest will not be sustained. A motion in arrest of judgment in a common law action for damages for negligence will not be sustained if there is one count in the declaration which states a cause of action, even though imperfectly.

4. SAME what questions may be considered in determining whether street railway motorman was negligent in rounding curve. In an action against a street railway company for an injury to a prospective passenger who was struck by the car as it rounded a curve, questions as to the amount of overhang of the car in turning the corner at the time and place in question and as to the type of the car are proper for the jury to consider in determining whether or not the motorman, in operating the car in the manner he did, under the circumstances, was guilty of negligence.

5. SAME when the defendant cannot complain of the plaintiff's instructions which refer to the declaration. Even though the declaration in an action for negligence is open to demurrer, yet if the defendant, by its own instruction, refers the jury to the declaration for a statement of what the negligence constituting the cause of action in the case consists, it cannot be heard in the Supreme Court to complain of similar instructions given at the request of the plaintiff.

APPEAL from the Second Branch Appellate Court for the First District;-heard in that court on appeal from the Superior Court of Cook county; the Hon. HARRY C. MoRAN, Judge, presiding.

HARRY P. WEBER, GEORGE W. MILLER, and ARTHUR J. DONOVAN, (JOHN R. GUILLIAMS, and BENJAMIN F. RICHOLSON, of counsel,) for appellant.

SABATH, STAFFORD & SABATH, (CHARLES B. STAFFORD, of counsel,) for appellee.

Mr. JUSTICE CRAIG delivered the opinion of the court:

Appellee, John A. Kelly, brought suit in the superior court of Cook county against appellant, the Chicago City Railway Company, to recover damages for injuries sustained by him by being struck by the rear or overhanging portion of a street car while rounding a curve on one of the streets in the city of Chicago along which appellant operates its railroad.

The declaration contains four counts. Each count contains formal allegations as to the ownership and operation of the railroad, the location and situation of the car tracks at Stony Island avenue and Fifty-sixth street, there being a curve where the tracks turn from Stony Island avenue onto Fifty-sixth street, the exercise of due care on the part of appellee, and the duty of appellant to use ordinary care in the management and operation of said car to avoid injury to him; that appellee was in the street for the purpose of becoming a passenger and that appellant had notice of such intention; that it so carelessly and negligently operated its car that it ran into and injured him, and that as a result of such accident he was severely and permanently injured. The negligence charged in the first count is the failure to stop the car on signal at the proper and customary stopping place to receive passengers; in the second, the

failure to stop the car on signal but slowing it down, and, as appellee approached the car to board it, suddenly increasing its speed as it rounded the curve; in the third, the careless and negligent operation of the car around the curve after appellant had notice of appellee's intention to become a passenger; and in the fourth, the careless and negligent operation of the car at a high and excessive rate of speed around the curve. Each count charges that by reason of the negligence alleged in that count the car ran into appellee and injured him. A plea of the general issue was filed. The cause was tried before a jury and a verdict rendered in favor of appellee for $1000. Motions for a new trial and in arrest of judgment were respectively made and overruled and judgment entered on the verdict. On appeal to the Appellate Court for the First District the judgment of the lower court was affirmed. A certificate of importance and appeal were granted, and the cause is before us pursuant to such certificate and appeal.

It is first insisted that the court was in error in refusing to exclude the evidence and instruct the jury to find defendant not guilty. A motion of this character, accompanied by the proper instruction, was made at the close of the plaintiff's case and renewed again at the close of all the evidence. The court refused to give the instruction, and its refusal is assigned as error. The only question raised and preserved for review in this court on such motion is, does the evidence on the part of the plaintiff, if taken as true and most favorably considered for him, with all just inferences to be drawn therefrom, make out a prima facie case on the part of the plaintiff? The question of the weight of the evidence or the credibility of the witnesses cannot be considered. If there was any evidence in the record from which, standing alone, the jury might, without acting unreasonably in the eyes of the law, have found the material averments of the declaration to have been sustained, the motion was properly denied and the instruction refused.

McGregor v. Reid, Murdoch & Co. 178 Ill. 464; Libby, McNeill & Libby v. Cook, 222 id. 206; Devine v. Delano, 272 id. 166.) We can, therefore, only review the evidence at this time for the purpose of ascertaining whether or not the evidence on the part of appellee established a prima facie case.

The appellant operates a double-line track of street railway along Stony Island avenue and Fifty-sixth street, in the city of Chicago. Stony Island avenue runs north and south and Fifty-sixth street runs east and west. At the intersection of these streets the car tracks on Stony Island avenue turn west onto Fifty-sixth street. On the afternoon of Sunday, May 5, 1912, appellee, his wife and his three children,-a daughter and two sons, aged eleven and thirteen years, respectively, came to the corner at Stony Island avenue and Fifty-sixth street and waited at the southeast corner of the street intersection for the purpose of taking a north-bound car on the Stony Island avenue line. There were some thirty or forty people at this place. As the car approached the corner from the south and while it was still a block or more distant, appellee and the members of his family stepped out into the street for the purpose of taking this car. The distance between the street curb and the tracks at this place was something like five or six feet. Appellee and his youngest son were standing about five feet from the tracks and the beginning of the curve. At this time most of the people on the corner had stepped out into the street. As the car approached the corner it slackened its speed and several young men tried to board the car before it came up to where the crowd was waiting. The car apparently was about to stop before reaching the curve. On reaching the appellee it suddenly .started forward and rounded the curve, going west onto Fifty-sixth street, at a comparatively rapid rate of speed. Appellee was about midway of the car before he discovered it was not going to stop. When he saw the car was going

by he reached over and took hold of his youngest son to remove him to a place of safety. As he did so the car rounded the curve and he was struck by the rear or overhanging end of the car and knocked to the ground and injured. No claim is made that appellee was not seriously injured or that the damages awarded are excessive if appellant is liable for his injuries. The main defense relied upon is contributory negligence on the part of appellee. Appellant insists that the danger from being hit by the overhanging end of the car in rounding the curve was as open and obvious to appellee as it was to the servants of appellant, and that he was guilty of contributory negligence in placing himself in such a position that he might be hit by the car in rounding the curve.

It is the general rule, as contended by appellant, that it is not negligence per se for a street car company to fail to stop a car on signal at a corner, (South Chicago City Railway Co. v. Dufresne, 200 Ill. 456,) and that a motorman may rightfully assume, in rounding a curve, that an adult person standing near the tracks and apparently able to see, hear and move, and who has knowledge of the curve in the track and that in rounding a curve the rear end of a street car will swing beyond the track, will draw back and avoid injury, and the motorman is under no obligation to warn such person against such open and obvious danger. (Garvey v. Rhode Island Co. 26 R. I. 80; Miller v. Public Service Corporation, 86 N. J. L. 631, and cases cited.) It is also true that the question as to whether or not a person, as a matter of law, is guilty of such negligence in a given case as will bar him of his right of action depends upon the particular facts and circumstances of each case. In the instant case the act of appellee and others in stepping into the street was notice to the motorman that they were there for the purpose of taking the car and expected it to stop at that point. This notice the motorman had before the car reached the street intersection and while he was still