#### Philip Buescher, Plaintiff in Error, v. Illinois Valley Railway Company, Defendant in Error.

Gen. No. 5,818.

(Not to be reported in full.)

Abstract of the Decision.

1. Railroads, § 594 * —when instruction as to contributory negligence is erroneous. Instructions directing a finding for defendant, *569if a person of ordinary prudence exercising ordinary care would not have attempted to get upon a railroad car, held erroneous as ignoring negligence of defendant in starting the car with a sudden jerk when plaintiff was partially on such car.

*568Error to the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the April term, 1913.

Reversed and remanded.

Opinion filed August 2, 1913.

Statement of the Case.

Action by Philip Buescher against Illinois Valley Railway Company for damages for personal injuries. From a judgment for defendant, plaintiff brings error.

Gleim & Colwell and Butters & Armstrong, for plaintiff in error.

Duncan, Doyle & O’Conor, for defendant in error.

*

See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

Mr. Presiding Justice Whitney

delivered the opinion of the court.

*5692. Railroads, § 593*—when instruction as to duty of railroad is erroneous. An instruction that a defendant railroad was not required to assume that a plaintiff was going to hoard a car while it was in motion and that it was not required to stop its car lest he might attempt to do so, held erroneous in view of evidence of case.

3. Instructions, § 130*—when instructions are erroneous as ignoring material facts. In an action for injuries sustained while attempting to board a railway car, instructions which select a single circumstance or point and say that that alone would not entitle plaintiff to recover, or that alone would not be negligence or that it does not matter what the fact is in regard thereto, are erroneous.

4. Carriers, § 424*—when instructions are erroneous. Where a person was injured while attempting to board a railway car, instructions stating that it did not matter what the condition of the brake was on the car or how far the car ran after the accident were erroneous, since such facts were material on the issue of negligence in boarding the car.

5. Instructions, § 7*—when errors toarrant reversal. Where the evidence is conflicting, incorrect instructions may warrant reversal.