negligence on the part of the defendant company which caused the plaintiff's injuries. The learned trial judge should therefore have directed a verdict for the defendant, or subsequently entered judg ment for the defendant notwithstanding the verdict.

The assignment of error is sustained and the judgment is reversed, and judgment is now entered for the defendant, non obstante veredicto.

STACK v. EAST ST. LOUIS & SUBURBAN RAILWAY CO.

[SUPREME COURT OF ILLINOIS, JUNE 29, 1910.]

245 Ill. 308.

1. Negligent Death-Burden of Proof.

In an action for damages for the death of one who had stepped from one street car and was killed by another car going in the opposite direction, the burden of proof is upon the plaintiff to show that the deceased was exercising ordinary care at the time of the accident, to be determined as a fact from the circumstances surrounding the event.

2. Street Railroads-Injury-Care Required of One Who Had Alighted.

A person who alighted from one street car and after passing around the rear of such car was killed by another car going in the opposite direction from the one from which he had alighted, is only bound to exercise reasonable care under all of the circumstances to avoid injury by the approaching car.

3. Street Railroads-Confusion-Contributory Negligence.

A person cannot be chargeable with contributory negligence, if, upon passing around the rear of a street car from which he had just alighted he is confronted by imminent danger from another car going in the opposite direction, and in confusion does nothing or takes a step or two in the wrong direction and as a result is struck by the car.

4. Street Railroads-Excessive Speed-Care Required.

Negligence in running a street car at an excessive rate of speed without sounding a gong, past another car which had stopped at a crossing to permit passengers to alight, will not relieve one who was passing around the rear of the car from which he had just alighted, from the necessity of exercising care for his own safety, but such negligence may be considered in determining whether his conduct was such as an ordinarily prudent man might have adopted under similar circumstances.

Appeal by defendant from a judgment of the Circuit Court of St. Clair County, rendered in favor of plaintiff, as administratrix in an action brought to recover damages for the alleged negligent death of her husband who was struck by a street car. Affirmed.

NOTE.

On the subject of Injuries to Persons Struck by Street Cars After Appearing From Behind Other Cars, see note in 20 Am. Neg. Rep. 590.

And on the subject of Liability for Injury to Persons Alighting From Street Cars and Trains, see notes in 7 Am. Neg. Rep. 367; 9 Am. Neg. Rep. 17, 572; 14 Am. Neg. Rep. $25, 334;

and 21 Am. Neg. Rep. 604.

And on the subject of Alighting From Cars, generally, see Vols. 2-7 Am. Neg. Cas., where the "Alighting and Boarding Cars," from the earliest period to 1896, decided in the States and Territories and the Federal and Supreme Courts of the United States. are reported and classified and ar. ranged in alphabetical order of States

For appellant-Schaefer, Farmer & Kruger.

For appellee-M. V. Joyce, and D. J. Sullivan.

DECLARATION.

Julia Stack, administratrix of the estate of John Stack, deceased, plaintiff, by Maurice V. Joyce and Keefe & Sullivan, her attorneys, complains of the East St. Louis and Suburban Railway Company, a corporation, defendant, of a plea of trespass on the case:

For that whereas, the defendant, on the 11th day of May, A. D., 1907, and for a long time prior thereto, was possessed of and operating a certain line of railroad extending from the city of East St. Louis to the city of Belleville, in said county, and was possessed of and operating on its said line of road certain electric cars for the transportation of passengers for hire; that defendant's said line of road was connected with the track of the East St. Louis Railway Company, a street railway corporation having tracks laid upon certain streets of the city of East St. Louis, and along and upon State Street, in said city; that defendant was, on the date aforesaid, running its passenger cars on its line, aforesaid, and from its line aforesaid, over the tracks of the East St Louis Railway Company upon State Street in the city of East St. Louis; that on the date aforesaid the plaintiff's intestate became a passenger on one of defendant's cars, at or about Twenty-sixth Street in the city of East St. Louis, to be conveyed in said car, as such passenger, to Sixteenth Street, in the city of East St. Louis, his destination; that Sixteenth Street is one of the public streets of the city of East St. Louis, and crosses State Street at right angles; that when the car on which plaintiff's intestate became such passenger, crossed Sixteenth Street, it stopped to allow plaintiff's intestate, and other passengers, to alight therefrom, that being one of its usual and customary places to allow passengers to get on and off its cars; that at that point on State Street there is a double track, the northerly of which is used by the westbound cars of the defendant, and the southerly of which is used by the east-bound cars of the defendant.

It, therefore, became and was the duty of the defendant to use reasonable care in the operation and control of its cars going in the opposite direction upon the adjacent track, while passengers were alighting from the car in question, to avoid unnecessarily injuring passengers after alighting and while yet lawfully upon the street; but the defendant not regarding its duty in that behalf, so negligently managed one of its east-bound cars upon the adjacent track, afore

said, by running the same at a high rate of speed past the car from which passengers were alighting, without ringing a bell or sounding a gong and without having said car under proper control, that the east-bound car was thereby negligently driven upon and against plaintiff's intestate, while he, in the exercise of due care and caution for his own safety, was attempting to cross said east-bound track, after alighting from the car aforesaid, upon the said crossing of Sixteenth Street and State Street, in said city, whereby plaintiff's intestate was instantly killed.

And for that whereas, also, the defendant, on the 11th day of May, A. D., 1907, and for a long time prior thereto, was a corporation, organized under the Railroad Act of the State of Illinois, and was possessed of and operating a certain line of railroad, extending from the city of East St. Louis, in the county of St. Clair and State of Illinois, to the city of Belleville, in said county and state, and was possessed of and operating upon its said line of railroad certain electric cars used for the transportation of passengers for hire; that at the westerly terminus of its said line of railway its tracks were connected with the tracks of the East St. Louis Company, a street railway corporation, having a line of double tracks upon State Street, one of the public streets of the city of East St. Louis, the northerly track of which was used for west-bound cars, and the southerly track of which was used for east-bound cars; that on the date aforesaid the defendant was running its cars over the said tracks of the East St. Louis Railway Company, upon State Street in the city of East St. Louis; that on the date aforesaid there was in force in the city of East St. Louis an ordinance regulating the speed of any train, locomotive engine, or car, operated by any railroad corporation, within the corporate limits of the city, as follows: "No railroad company or conductor, engineer, or other employee of such company, managing or controlling any locomotive engine, car, or train, upon any railroad track, shall run, or permit to be run, within the limits of said city, any passenger train or car at a greater rate of speed than ten miles per hour, under a penalty, in either case, of not less than twenty dollars nor more than one hundred dollars."

It, therefore, became and was the duty of the defendant in operating its cars along and upon State Street, in the city of East St. Louis, to comply with the foregoing ordinance, and not to run its passenger cars at a higher rate of speed than ten miles per hour; yet the defendant, not regarding its duty in that behalf, on the date aforesaid, negligently ran one of its east-bound cars along and upon State Street, in said city, and over the crossing of Sixteenth Street, also a

Vol. I. Negl.-44

public street of the city of East St. Louis, at a high and dangerous rate of speed, to-wit, at the rate of twenty miles per hour; by reason whereof the said car was driven up and against plaintiff's intestate, while he, in the exercise of due care and caution for his own safety, having just alighted from one of defendant's west-bound cars, which was still standing at the crossing of Sixteenth Street and State Street, in said city, for passengers to alight, was attempting to cross over the east-bound track, upon the crossing aforesaid; whereby plaintiff's intestate was struck by an east-bound car and instantly killed. And for that whereas, also, the defendant, on the 11th day of May, A. D., 1907, was a corporation organized under the Railroad Act of the State of Illinois, and was possessed of and operating a certain line of railroad extending from the city of East St. Louis, in the county of St. Clair, and State of Illinois, to the city of Belleville, in said county and State, and was possessed and operating upon its said line of railroad certain electric cars used for the transportation of passengers for hire; that at the westerly terminus of its said line of railway its tracks were connected with the tracks of the East St. Louis Railway Company, a street railway corporation, having a double line of tracks. upon one of the public streets of the city of East St. Louis, called State Street, the northerly track of which was used for west-bound cars, and the southerly track of which was used for east-bound cars.

And plaintiff avers that on the date aforesaid the defendant was wrongfully, unlawfully, and without legal authority, running its cars over the tracks of the East St. Louis Railway Company, aforesaid, upon State Street; and plaintiff avers that on the date aforesaid, while her intestate was crossing State Street at its intersection with Sixteenth Street, in said city of St. Louis, both of said streets being public streets in said city, and while her intestate was in the exercise of due care and caution for his own safety, one of defendant's eastbound cars, so wrongfully and without legal authority being, by the defendant, driven along and upon the tracks of the East St. Louis Railway Company, on said State Street, at the crossing aforesaid, was driven upon and against plaintiff's intestate; whereby he was instantly killed.

And plaintiff avers that her intestate left surviving him, Julia Stack, his widow, and John Stack and Maurice Stack, his children, and only heirs at law. And plaintiff avers that by reason of the premises, aforesaid, she has sustained loss and damage, for the use of said next of kin, in the sum of ten thousand dollars, and therefore she brings this suit, etc.