#### Narcissa Cattinari v. Martin Delmagro et al.

Gen. No. 4,875.

Motion fob new trial—effect of failure to interpose, upon review of case. In a case tried by a jury the rulings of the court upon the admission and exclusion of testimony, and the sufficiency of the evidence to require its submission to the jury, are not preserved for the consideration of a court of review, unless the party complaining has moved for a new trial and upon such motion being denied has excepted thereto, and preserved such motion and exception in the bill of exceptions. Such a motion, however, is not essential to a review of the action of the court in giving and refusing instructions.

Action on the case. Appeal from the Circuit Court of Bureau county; the Hon. Samuel C. Stough, Judge, presiding.

Heard in this court at the April term, 1907.

Affirmed.

Opinion filed August 6, 1907.

Ulysses G. Hayden, for appellant.

C. N. Hollebioh and Jay L. Spaulding, for appellees.

Mr. Justice Dibell

delivered the opinion of the court.

On the trial of this action on the case brought by Cattinari against Delmagro and others for injuries received by plaintiff while operating a machine for making macaroni as an employe of defendants, which injuries the declaration attributed to the negligence of defendants, the court, at the close of plaintiff’s evidence, denied a motion by plaintiff to withdraw a juror and continue the cause, and granted a motion by defendants to exclude the evidence, and gave an instruction requested by defendants to find defendants not guilty. A verdict for defendants was returned, and a judgment was rendered upon the verdict. This is an appeal by plaintiff from that judgment.

No motion for a new trial was interposed. In a case tried by a jury the rulings of the court upon the admission and exclusion of testimony, and the suffi*453ciency of the evidence to require its submission to the jury, are not preserved for the consideration of a court of review unless the party complaining has moved for a new trial and that motion has been denied and he has excepted thereto and such action and exception have been preserved in a bill of exceptions. C., B. & Q. R. R. Co. v. Haselwood, 194 Ill. 69; C. & E. I. R. R. Co. v. Schmitz, 211 Ill. 446. It was held in I. C. R. R. Co. v. O’Keefe, 154 Ill. 508, that the action of the trial court in giving and refusing instructions may be reviewed without a motion for a new trial. This authorizes this court to review the action of the trial court in instructing the jury to find the defendants not guilty. But before this instruction was given the court had excluded all the evidence, and the correctness of that action of the court has not been preserved for review, for want- of a motion for a new trial. At the time said instruction was given there was no evidence in the case, and the plaintiff had closed his proof. The only verdict which could be rendered in. that state of the case was for the defendants. The instruction therefore was properly given under the conditions then existing.

The judgment is therefore affirmed.

Affirmed.