#### Samuel Rothbart, Appellee, v. Marshall Field & Company, Appellant.

Gen. No. 20,905.

(Not to be reported in full.)

Appeal from the Circuit Court of Cook county; the Hon. Louis Bernreuter, Judge, presiding.

Heard in the Branch Appellate Court at the October term, 1914.

Reversed and remanded.

Opinion filed October 6, 1915.

Statement of the Case.

Action by Samuel Rothbart against Marshall Field & Company to recover damages for personal injuries. *139At the trial the defendant moved for a directed verdict at the close of the plaintiffs evidence, and also at the close of all the evidence. Both motions were denied and proper exceptions taken. . A verdict for five hundred dollars was rendered and judgment being entered thereon, defendant appeals.

Abstract of the Decision.

1. Appeal and error, § 1392 * —what question is presented 5y assignment of error. An assignment of error in denying a motion for a directed verdict presents the question whether there is in the record any evidence fairly tending to prove the material averments of the declaration.

2. Trial, § 192 * —when denial of directed verdict is error. In an action for personal injuries sustained by a servant while riding on top of a heavily loaded wagon, where the declaration alleged that the plaintiff was struck by a viaduct, held that there was no evidence fairly tending to support such declaration, and a denial of a motion to find a verdict for the defendant was error.

3. Master and servant, § 665 * —when admission of evidence as to cause of injury is erroneous. In an action for personal injuries sustained by a servant while riding on top of a heavily loaded wagon, a denial of a motion to exclude statements of the plaintiff that he was hit by a viaduct was error, when it appeared that such statements were mere inferences or conclusions.

4. Master and servant, § 721 * —what is question for jury. The question of the relation of fellow-servants is ordinarily for the jury.

Frank P. Leffingwell and Robert J. Folonie, for appellant.

A. H. Ranes and H. Blaisdell, for appellee.

*

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

Mr. Justice Fitch

delivered the opinion of the court.