#### Herschel H. Byall, Administrator, Appellee, v. F. Landon, Appellant.

Gen. No. 21,326.

(Not to be reported in full.)

Appeal from the Circuit Court of Cook county; the Hon. Dan W. Maddox, Judge, presiding.

Heard in this court at the March term, 1915.

Reversed with finding of fact.

Opinion filed January 3, 1916.

Statement of the Case.

Action by Herschel M. Byall, administrator of the estate of Harry Boyd King, deceased, plaintiff, against F. Landon, defendant, to recover for the death of plaintiff’s intestate. From a judgment of $1,500 for plaintiff, defendant appeals.

The evidence shows that defendant, who is in the teaming and hauling business, at the time in question was engaged in hauling the materials of a dismantled police station through an alley which runs easterly into Market street, Chicago, between the building occupied by the Gault House on the north, and the building of the Chicago Evening Post on the south. The alley is ten feet ten or eleven inches wide, and inclines upward from the rear of these buildings towards Market street, with “quite a grade.” The materials loaded on the wagon were iron gratings and flat iron sheets about ten feet long by eight feet wide. They were loaded so as to extend an equal distance on each side of the wagon, which left a space of about eighteen inches between the edge of the load and either wall of the alley. There is evidence that the iron was tightly tied down with chains and ropes so that it could not slip.

The deceased, King, at this time was about twenty years old, and was an assistant cashier of the Post. In the early afternoon of April 23rd with a companion *301he came out of the rear of the Post building into the alley and walked towards Market street, passing the loaded wagon as it stood in the alley. After standing for a time in Market street they retraced their steps down the alley way. At this time the heavily loaded wagon was moving, with four horses pulling it up the slope towards Market street. Plaintiff continued walking towards the approaching wagon and attempted to pass in the narrow space between it and the wall of the Post building. Just as he was opposite the hind wheels •a wheel struck a hole in the pavement, causing the wagon to skid towards the Post building, catching and crushing plaintiff against the wall. From the injuries thus received he died shortly thereafter. At the time of the accident the wagon was nearly out of the alley.

Abstract of the Decision.

Negligence, § 187 * —when evidence shows contributory negligence. In an action to recover for wrongful death, alleged to have been caused by defendant’s negligence, evidence examined and held to show the injury to have been caused by the negligence of plaintiff’s intestate.

Calhoun, Lyford &Sheean, for appellant; Edward W. Rawlins, of counsel.

Alden, Latham & Young, for appellee.

*

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

Mr. Presiding Justice McSurely

delivered the opinion of the court.