#### Marcus M. Whitney, Executor, Appellee, v. Chicago Railways Company and The City of Chicago. On Appeal of City of Chicago, Appellant.

Gen. No. 18,963.

(Not to he reported in full.)

Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.

Heard in the Branch Appellate Court at the October term, 1912.

Affirmed.

Opinion filed February 17, 1914.

Statement of the Case.

Action "by Marcus M. "Whitney, executor of the estate of Fred A. "Whitney, deceased, against Chicago Railways Company and the City of Chicago for the death of plaintiff’s intestate, Fred A. Whitney, due to the front wheel of a wagon on which he was riding sinking in a hole or rut in a public street about two feet from *212the tracks of defendant Street Bailway Company. The court directed a verdict in favor of the Bailways Company and the jury returned a verdict for fifteen hundred dollars in favor of plaintiff against defendant City, from which it appeals.

Abstract of the Decision.

1. Street railroads, § 44 * —liability for injury due to holes in street. Where a person riding on a truck driven by another was killed as the result of the front wheel of the truck dropping into a hole or rut located in a public street about two feet from the tracks of a street railway company, in an action against the City and the Street Railway Company a verdict in favor of the latter was held to have properly been directed.

2. Death, § 63 * —when verdict for more than nominal damages proper. In an action for wrongful death, evidence that decedent was survived by four brothers and a sister, that the latter was a widow and for the last two or three years of his life decedent had resided with her, paying her for hoard, assisting her in buying clothing, giving her money and otherwise aiding her, was held to support a verdict for more than nominal damages.

3. Death, § 21 * —proximate cause. Where, as the result of an accident, decedent suffered a splintered fracture involving the upper two-thirds of the femur bone, death following sixteen days after-wards, according to the surgeon’s testimony, as the immediate result of hypostatic pneumonia due to the shock of the accident, the shock of the operation on the splintered bone, the ether which was necessarily used in the operation and the enlargement of blood vessels induced by -the dependent or recumbent position which *213decedent was obliged to assume because of the injury and the operation, it was held that the proof tended to establish the accident as the proximate cause of death.

*212William H. Sexton and N. L. Piotrowski, for appellant.

David B. Levy, of counsel.

Charles I. Barker and Bolton, Moriarty & Williams, for appellee.

*

See Illinois Notes Digest, Yols. XI to XV, same topic and section number.

*

See Illinois Notes Digest, Yds. XI to XV, same topic and section number.

Mr. Justice Clark

delivered the opinion of the court.

*2134. Appeal and error, § 1463 * —when refusal to strike evidence harmless. Error in refusing to strike out testimony of a physician, based on hearsay, that decedent was in good health prior to the accident, is harmless where it was not claimed that decedent "was in bad health prior to the accident and his good health was shown by other competent evidence.