No. 80 — 2350.

#### Chicago, Milwaukee & St. Paul Railway Company v. Zieman.

Opinion filed June 16, 1886.

This was an action by appellee against the railway company, appellant, to recover for a personal injury to the former whereby he lost a leg, occasioned November 19, 1879, as it was alleged, by the negligence of the defendant’s servants in running an engine at an improper rate of speed, and without giving the proper signals, at a place where the tracks of the defendan; crossed May street, in the city of Chicago. Judgment for $2,500 for appellee. The judgment is reversed for error in appellee’s instruction, which is at variance with the rule that the doctrine of comparative negligence can not be invoked except where the injured party was in the exercise of ordinary care to avoid injury. The rule that where the evidence is conflicting, the verdict of the jury must be taken as the proper conclusion from the evidence is subject to the qualification that the jury were accurately instructed.

Attorneys, for appellant, Mr. E. Walker; for appellee, Mr Arthur Schroeder and Mr. Frank J. Loesch.

Opinion by

McAllister, J.

Judge below, Kiric Hawes.