#### Nora Varley, Administratrix, Appellee, v. The Chicago & Alton Railroad Company, Appellant.

Gen. No. 19,374.

(Not to be reported in full.)

Appeal from the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.

Reversed.

Opinion filed May 19, 1914.

Rehearing denied June 2, 1914.

Statement of the Case.

Action by Nora Varley, administratrix of the estate of Julia Varley, deceased, against The Chicago & Alton Bailroad Company to recover for the wrongful death of the deceased. The facts show that deceased and a girl friend attempted to cross defendant’s railroad tracks at a street crossing while the gates were down and were compelled to stop by an approaching train on the southbound tracks; that they had passed over the northbound track and were standing between the two tracks, when a train was approaching on the northbound track, and that one Beean, who was with the girls and had remained outside the gates, realized their danger, rushed to them and attempted to protect them either by getting them in the space between the tracks or by pulling them over the northbound track, and while doing so he and the plaintiff’s intestate were both struck by the train on the northbound track and killed. From a judgment in favor of plaintiff, defendant appeals.

*25Abstract of the Decision.

Railroads, § 738 * —when recovery for death of pedestrian at street crossing not sustained hy evidence. In an action against a railroad company for the wrongful death of plaintiff’s intestate where the facts showed that the deceased and another girl attempted to cross the defendant’s tracks at a street crossing when the gates were down and that the deceased was struck hy a train, held that the evidence was insufficient to show that the deceased was in the exercise of due care for her own safety and that a verdict for plaintiff could not he sustained.

Winston, Payne, Strawn & Shaw, for appellant; Edward W. Everett and James H. Winston, of counsel.

Francis A. McDonnell and Munson T. Case, for appellee; Arba N. Waterman, of counsel.

*

See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Clark

delivered the opinion of the court.