#### L. R. Green, Appellant, v. Fred E. Streitmatter, Appellee.

Gen. No. 5,810.

(Not to be reported in full.)

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

Affirmed.

Opinion filed August 2, 1913.

Statement of the Case.

Action by L. B. Green against Fred E. Streitmatter to recover damages sustained by plaintiff resulting from the alleged negligence of defendant in driving his automobile so as to collide with a horse plaintiff was driving on the highway. From a judgment in favor of defendant for costs, plaintiff appeals.

John B. King, for appellant.

Dailey & Miller, for appellee.

*

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

Mr. Justice Dibell

delivered the opinion of the court.

*26Abstract of the Decision.

1. Automobiles and garages, § 3 * —when evidence does not establish liability for collision. In an action for injuries sustained by the driver of a horse and surrey resulting from an automobile colliding with plaintiff’s horse, held that there was evidence that plaintiff was guilty of contributory negligence and that the verdict for defendant was sustained by the evidence.

2. Instructions, § 114 * —conformity with issues. Instructions on issues not submitted by the declaration may be properly' refused.

3. Negligence, § 208 * —when instruction on contributory negligence may be given. Instruction on question whether appellant was guilty of contributory negligence may be given notwithstanding the declaration contained no such averment.

4. Appeal and error, § 1566 * —when refusal of instruction on measure of damages, harmless. Refusal of instruction on the measure of damages immaterial when the verdict was against appellant.

5. Appeal and error, § 581*—exception to overruling of motion for new trial unnecessary. Under the Practice Act, § 81, as amended by Act of 1911, J. & A. jf 8618, an exception’ to the overruling of a motion for a new trial is unnecessary and need not be contained in the bill of exceptions.