#### James Bosley, Administrator, Appellee, v. The Baltimore & Ohio Southwestern Railroad Company, Appellant.

(Not to be reported in full.)

Appeal from the Circuit Court of Marion county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the March term, 1913.

Affirmed.

Opinion filed October 9, 1913.

Statement of the Case.

Action by James Bosley, administrator of the estate of Dora M. Bosley, deceased, to recover damages for the death of deceased resulting from being struck by one of defendant’s locomotives at intersection of a sidewalk and the defendant’s right of way. From a judgment in fávor of plaintiff for two thousand dollars, defendant appeals.

Kramer, Kramer & Campbell, C. H. G. Heinfelden and Kagy & Vardervort, for appellant; Edward Barton, of counsel.

Charles H. Holt and W. C. Wilson, for appellee.

*

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

Mr. Justice Thompson

delivered the opinion of the court.

*640Abstract of the Decision.

1. Railroads, § 703 * —presumption arising from excessive speed. In an action for death resulting from being struck by train running at a speed in excess of the rate fixed by law of that place, the injury will be presumed to have resulted from such negligence.

2. Railroads, § 768 * —when requested instruction on duty to looh and listen properly refused. Instruction informing the jury that unless the evidence showed that the deceased before attempting to cross the track did look and listen for approaching trains she was guilty of contributory negligence, held properly refused where the question whether she did look and listen depends upon facts and circumstances surrounding the person at the time.

3. Railroads, § 772 * —when instruction on relative weight of positive and negative evidence properly refused. Requested instruction containing the statement that positive evidence as to the fact that the bell was rung or whistle blown is entitled to more weight than negative evidence in relation to the same fact, held properly refused.