#### Frank Kohl, Administrator, Appellee, v. Chester D. Clarkson, Appellant.

Gen. No. 5,670.

(Not to be reported in full.)

Abstract of the Decision.

1. Death, § 46 * —evidence sufficient to prove want of contributory negligence. In an action for death of plaintiff’s intestate where there was no eyewitness to the killing, administrator may prove ordinary care on the part of deceased by the highest proof *520of which the case is capable, including the habits of deceased, and from any other facts and circumstances from which jury may find that he exercised such care.

*519Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puteebatjgh, Judge, presiding. Heard in this court at the April term, 1913.

• Reversed with finding of fact.

Opinion filed August 2, 1913.

Statement of the Case.

Action by Frank Kohl, administrator of the estate of Henry Kohl, deceased, against Chester D. Clarkson to recover damages for the death of deceased while in the employ of defendant. From a judgment in favor of plaintiff for two thousand dollars, defendant appeals.

Frank T. Miller and Jay T. Hunter, for appellant.

Nathan H. Weiss, for appellee.

*

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

*

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

Mr. Presiding Justice Whitney

delivered the opinion of the court.

*5202. Death, § 78 * —when verdict not sustained by the evidence. In an action against an owner of a laundry to recover for death of an employe while cleaning a laundry wringer, verdict • in favor of plaintiff, held contrary to the weight of the evidence.

3. Witnesses, § 131*—when defendant incompetent in an action for wrongful death. In an action for wrongful death, defendant held incompetent to testify whether he had talked with deceased or warned him with reference to the use of a machine.

4. Instructions, § 126*—propriety of abstract instruction. Instructions which are only abstract propositions of law not connected with the evidence in the case may be properly refused.