#### H. W. Baethke, Administrator, Appellee, v. The Aurora, Elgin & Chicago Railroad Company, Appellant.

Gen. No. 18,798.

(Not to he reported in full.)

Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding.

Heard in this court at the October term, 1912.

Affirmed.

Opinion filed March 9, 1914.

Statement of the Case.

Action by H. W. Baethke, administrator of the estate of John Barnowski, deceased, against The Aurora, Elgin & Chicago Railroad Company, a corporation, to recover damages for causing the death of deceased. From a judgment in favor of plaintiff, defendant appeals.

A judgment on a directed verdict of not guilty was reversed in Baethke v. Aurora, E. & C. R. Co., 163 Ill. *271 App. 30. The facts in the above case are stated in-the opinion in that case.

Abstract of the Decision.

1. Railroads, § 567*—when averments as to care of plaintiff not limited to the time of the injury. Where the counts in a declaration aver that the deceased while crossing the tracks of the defendant was in the exercise of due care for his own safety and that “through no fault of his own” he was struck and injured, etc., held, that the averments as to the exercise of care by the plaintiff was not limited to the time he was struck, so that the giving of an instruction, that if the jury found that plaintiff had made out his case as alleged in the counts in the declaration they should find the defendant guilty, was error.

2. Appeal and error, § 1725*—collusiveness of decision on former appeal. A decision of the Appellate Court on a former appeal is not conclusive on the question of contributory negligence, where the question presented on the former appeal was whether plaintiff’s evidence would warrant the direction of a verdict for defendant and on the subsequent appeal the question is whether the verdict is so clearly against the evidence that the court should set it aside.

Hopkins, Peppers & Hopkins, for appellant.

Stephen Janowioz, William Q-. Wood and Cyrus J. Wood, for appellee.

Mr.. Presiding Justice "Baker

delivered the opinion of the court.