#### Sam Weil, Appellee, v. Chicago City Railway Company, Appellant.

Gen. No. 18,424.

(Not to be reported in full.)

Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Tttthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.

Reversed and remanded.

Opinion filed October 9, 1913.

Rehearing denied October 23, 1913.

*110Abstract of the Decision.

1. Street railroads, § 142 * —when instruction on degree of care erroneous. Instruction requiring motorman to stop his car “in the shortest possible time and space” to avert a collision, held erroneous.

2. Street railroads, § 142*—when instruction improper as assuming facts. Instructions assuming that a particular act or omission on the part of the motorman constitutes negligence, held improper.

3. Street railroads, § 149*—when refusal of requested instruction is error. Refusal to give an instruction which correctly states the rule applicable to defendant’s theory of the case, there being evidence, to support such theory and the principle therein not being covered by other instructions, held érror.

4. Appeal and error, § 1652*—when erroneous instruction not cured by others. Instruction, erroneous in requiring motorman to exercise highest degree of care to avert a collision, not cured by other instructions where it directs a verdict on finding the facts to be as stated therein.

•Statement of the Case.

Action by Sam Weil against the Chicago City Railway Company to recover for personal injuries resulting from a collision of one of defendant’s cars with a wagon upon which plaintiff, as driver, was attempting to cross defendant’s tracks at a street intersection. From a judgment for plaintiff for two thousand dollars, defendant appeals.

Franklin B. Hussey and C. Le Roy Brown, for appellant ; Leonard A. Busby, of counsel.

Levy & O’Donnell, for appellee.

*

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

Mr. Justice Fitch

delivered the opinion of the court.