#### Chicago & Eastern Illinois Railway Company v. George F. Jennings, Administrator.

Gen. No. 13,635.

Appellate Court—when decision in former appeal not binding upon. The decision of the Appellate Court rendered in one appeal of a case is in nowise binding upon it in a subsequent appeal of the same case where the decision of such court upon the first appeal was reversed and held for naught.

Action in case for death caused by alleged wrongful act. Appeal frofn the Circuit Court of Cook county; the Hon. Charles M. Walked, Judge, presiding.

Heard in the Branch Appellate Court at the March term, 1907.

Reversed.

Opinion filed January 14, 1908.

Calhoun, Lyford & Sheean, for appellant; E. H. Seneff, of counsel.

Wing & Wing, for appellee.

Mr. Justice Smith

delivered the opinion of the court.

This is the second appeal to this court from judgments in this cause. The decision on the first appeal is reported in 89 Ill. App. 335. In the opinion of the court on that appeal the material facts appearing in the record now before us are stated. Counsel for appellee state in their brief that on the trial now before us for review the evidence was almost, if not precisely, the same as was the evidence in the first trial. It is not necessary, therefore, to restate the evidence. The pleadings also are the same. They are stated in C. & E. I. R. R. Co. v. Jennings, 190 Ill. 478, where the judgment of the Appellate Court was reversed for error in the refusal of the trial court to give certain instructions, and the cause was remanded to the Circuit Court.

It is contended on behalf of appellee that the former decision of this case by the Appellate Court on the merits is final as to the matters decided, and is con-*416elusive upon the parties on this appeal. This contention, we think, as applied to this case, is not sound. The former decision and judgment of the Appellate Court was wholly reversed and set aside by the Supreme Court. While the decision of that court is based solely on error in the trial court in refusing to give instructions upon the principal question in dispute in the case, as to whether Jennings had become a passenger on appellant’s railroad, its legal effect nevertheless is to reverse, set aside and hold for naught the judgment of the Appellate Court as erroneous. When a judgment of the Appellate Court is reversed for error in precise terms, or in effect, it is no longer conclusive upon the parties or this court on a second appeal in the same case. We know of no authority holding to the contrary. To hold that the former decision is conclusive on the merits, although it has been reversed for error in law, involves an absurdity in theory and results to which we decline to commit the court. This case is before us for decision with the duty and liberty to consider every assignment of error as fully and as freely as upon the former appeal, but with the advantage of the clear exposition of the law .applicable to the question whether or not Jennings had become a passenger on appellant’s railroad, by the Supreme Court, in disposing of the case on the appeal above referred to.

As stated by the Supreme Court when this case was before it, each of the five counts of the declarations avers that appellant received Jennings as a passenger at or upon the intersection and crossing of its railroad and Seventy-sixth street, and near to its Seventy-sixth street station in the city of Chicago, upon a train about to arrive at, and stop and wait at said Seventy-sixth street station or depot; and that it thereupon became the duty of appellant to have permitted said Jennings safely to cross over its railroad tracks while going to said depot, etc. The different counts differ somewhat in respect to the character of the negligence charged as a breach of said duty.

*417The Supreme Court, after stating the averments of the declaration, and in answer to the contention of appellee that the relation of passenger and carrier alleged in the declaration was not so material as to require absolute proof, hold that under the fundamental rule that a plaintiff must recover, if at all, upon the case made by his declaration, and under the declaration the allegation was a material one. The court further said, at page 488 of the opinion: “There was no count upon the common law duty of a railroad company arising out of its relations to a person crossing a street over its tracks or resting on a relation of that kind. Every count was based on the contract relation, and plaintiff was bound to prove it.”

Upon a careful review and consideration of all the evidence upon this question in the record we are of the opinion that it fails to show the contract relation of passenger and carrier between appellant and Jennings at the time of the accident. There is no dispute or controversy in the evidence on this question. The material facts are stated in the opinion of the Supreme Court on pages 480 to 482 of its opinion. These facts do not, in our opinion, under the law laid down by the Supreme Court, create the contract relation of carrier and passenger; and under the facts and the law. the trial -court should have given to the jury at the completion of the evidence the instruction to find the defendant not guilty, as requested by appellant.

The judgment of the Circuit Court is accordingly reversed, but not remanded, with a finding of fact.

Reversed, with finding^ of fact.