#### Charles B. Lewman, Appellee, v. Danville Street Railway & Light Company, Appellant.

1. Trial—when improper remarks ground for reversal. Improper remarks in the presence of the jury which if heeded were calculated to arouse passion and prejudice even though rebuked, are ground for reversal.

2. Instructions—when upon question of negligence erroneous. An instruction .in a personal injury case which assumes the negligence of the defendant, is erroneous.

3. Instructions—when as to duty of keeping tracks in repair erroneous. It is error to tell.the jury that insofar as the keeping of the track in question in repair was left to the servants of the defendant it was the duty of the defendant to exercise reasonable supervision to see that the work entrusted to them was properly done; the duty of the defendant is to use reasonable care to see that its tracks are kept in a reasonably safe condition.

*5834. Instructions—when as to exercise of ordinary care erroneous. It is error to instruct the jury in effect that unless an accident occurred solely through the plaintiff’s negligence he is entitled to recover.

Action in case for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding.

Heard in this court at the May term, 1910.

Reversed and remanded.

Opinion filed May 26, 1911.

H. M. Steely, for appellant.

Mabin & Morris, for appellee.

Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

'This is an action on the case hy appellee against appellant, to recover damages for personal injuries sustained by the former while he was in the employ of appellant as a street car motorman. Upon a trial by jury a verdict was rendered in favor of the plaintiff for $300 and judgment entered thereon.

The second count of the declaration charges that the defendant negligently permitted dirt and trash to accumulate in the space on the inside of the rails of its street car track in which the flanges of the car wheels run, and that in consequence the car upon which the plaintiff was acting as motorman, while passing over an iron bridge, was caused to leave the rails and strike the iron frame-work of such bridge, whereby the plaintiff was thrown from the car and injured.

The sixth count charges that the derailment was caused by the negligence of the defendant in allowing a plank in the floor of the bridge to become loose so that one end thereof protruded, by reason of which the wheels of said car were caught by the end of said board. There was evidence tending to support the latter count. Upon the issues whether or not the accident was the result of the negligence of the defendant as charged; whether it was due to the negligence of *584the plaintiff in running his car at a high and dangerous rate of speed; and whether or not immediately prior to and at the time of the accident he was in the exercise of ordinary care and caution for his own safety, the evidence was close and conflicting, and the court was warranted in submitting the same to the jury. As the judgment must be reversed and the cause remanded for another trial, we shall not detail or discuss the evidence.

An examination of the record discloses that on several occasions during the trial, counsel for plaintiff made improper remarks in the presence of the jury, which if heeded by them were calculated to arouse their passion and prejudice. In view of the closeness of the case upon the facts, such conduct, although rebuked by the trial court, was of itself sufficiently prejudicial to necessitate a new trial. P. & O. Co. v. Scott, 137 Ill. App. 454.

The contention of the defendant that the plaintiff assumed the risk of being injured as charged, is without force, for the reason that the hazard arising from the negligence charged cannot properly be said to have been a usual known danger incident to his employment. There is no evidence tending to show that he knew of the defective condition of the track or flooring of the bridge, or that by exercise of ordinary care he could have known of the same. If however, he ran the car at a high and dangerous rate of speed as claimed he was guilty of contributory negligence.

The first paragraph of the second instruction given at the request of the plaintiff was complete in itself, and when so read, improperly assumed that the defendant was guilty of the negligence charged in the sixth count of the declaration. It was therefore calculated to mislead. The sixth instruction given for the plaintiff told the jury that in so far as the keeping of the track in repair was left to its servants, it was the duty of the defendant to exercise reasonable super*585vision to see that the work entrusted to them was properly done. The duty of the defendant was to use reasonable care to see that its tracks were kept in a reasonably safe condition. The instruction was misleading and should not have been given.

The fifteenth instruction offered by the defendant, after its modification by the court, told the jury in effect that unless the accident occurred solely through the plaintiff’s negligence, he was entitled to recover. The modification, which consisted in the interpolation pf the word “solely” in the instruction, was clearly improper. The eighteenth instruction was erroneous as offered and as modified and should have been refused. The court did not err in refusing the sixteenth, seventeenth and nineteenth instructions offered by the defendant, nor in refusing the others offered by it.

For the reasons indicated, the judgment of the Circuit Court will be reversed and the cause remanded.

Reversed cmd remanded.