#### Samuel Gruenberger, Appellee, v. Chicago City Railway Company et al., on appeal of Chicago Railways Company, Appellant.

Gen. No. 19,951.

(Not to be reported in full.)

Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.

Reversed and remanded.

Opinion filed November 10, 1914.

Statement of the Case.

Action by Samuel Gruenberger against the Chicago City Railway Company (hereinafter referred to as City Railway Co.) .and the Chicago Railways Company (hereinafter referred to as Railways Co.) to recover damages for personal injuries. In his second amended declaration, which consisted of one count, plaintiff alleged, in substance, that on November 21, 1910, the City Railway Co. was possessed of and was operating an eastbound electric street' car on 22nd street, Chicago; that plaintiff was a.passenger on said car ;-that certain servants of the City Railway Co. were driving said car in an easterly direction on 22nd street, *434at or near the intersection of that street with Western avenue; that the Railways Co. was possessed of and was operating another electric street car, running northward on said Western avenue under the management of its servants; that while plaintiff with all due care was riding as such passenger on said eastbound car, the Railways Co. by its servants so carelessly and improperly drove and managed said northbound car, and the City Railway Co. by its servants so carelessly and improperly drove and managed said eastbound car, that, through the negligence of said defendants by their said servants, the said northbound car struck the said eastbound car with great force and violence and plaintiff was thereby thrown from the south side seats of. said eastbound car to the north side seats thereof; and that plaintiff was thereby severely and permanently" injured. To this declaration each defendant filed a plea of the general issue.

Beyond the proof that a collision occurred there was no testimony in respect to the management and operation of the car of the Chicago Railways Company, at and just prior to the collision. The jury by their verdict found the Chicago Railways Company guilty, but made no finding as to the Chicago City Railway Company. From a judgment for twenty-five hundred dollars entered on the verdict in favor of the plaintiff, the defendant, the Chicago Railways Company, appeals.

Watson J. Ferry, for appellant; Leonard A. Busby, Warner H. Robinson and Franklin B. Hussey, of counsel.

Sabath, Levinson & Stafford, for appellee.

*

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

Mr. Justice Gridley

delivered the opinion of the court.

*435Abstract of the Decision.

1. Appeal and error, § 1106 * —what constitutes an appealable interest. Statement of counsel held not to be sufficient to justify a dismissal on the ground that the codefendant has no interest in the appeal.

2. Carriers, § 482 * —when instruction erroneous. In an action for personal injuries sustained while a passenger on a street car operated by one company, through a collision with a car operated by a codefendant company, against the latter of which the jury alone returned a verdict, an instruction tending to give the jury the impression that proof by the plaintiff of the fact of the collision, and that he was guilty of no negligence, made out a prima facie case of negligence on the part of the codefendant company, which it was bound to overcome by competent evidence showing that the accident happened without its negligence, is held erroneous as to such codefendant.

3. Carriers, § 476 * —what does not constitute an admission of negligence. A statement of counsel that one of two companies operating street cars assumed the defense of the case because its passenger was injured through a collision, and that he desired the jury to fix the liability, if any, as to which company, does not amount to an admission of negligence.