#### Howard Carlson by C. G. Carlson, Defendant in Error, v. Simeon Swenson, Plaintiff in Error.

Gen. No. 31,086.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.

Heard in the Branch Appellate Court at the March term, 1915.

Affirmed.

Opinion filed January 11, 1916.

Statement of the Case.

Action by Howard Carlson, a minor, by C. G-. Carlson, his next friend, plaintiff, .against Simeon Swenson, defendant, to recover for personal injuries sustained by the plaintiff by having fall on him a radiator placed in the lobby of the defendant’s theater. From a judgment for the plaintiff, the defendant brings error.

AlBert O. Olson, for plaintiff in error; James J. Leahy, of counsel.

*415Abstract of the Decision.

1. Appeal and error, § 538 * —when error in refusing motion to direct verdict not preserved for review. Where on the court’s refusal of the defendant’s motion for a directed verdict made at the close of the plaintiff’s case, the defendant introduces proof and fails to renew his motion at the close of all the evidence, the point that such refusal was erroneous is not preserved for review.

2. Appeal and error, § 800 * —when motion for new trial and ruling thereon need not appear in hill of exceptions as basis for review. Since the Amendment of 1911 to section 81 of the Practice Act (J. & A. If 8618) dispensing with the necessity of incorporating formal exceptions in the record, it seems that the former rule of practice, requiring that to preserve for review the refusal of a new trial the motion therefor and ruling thereon must appear in the hill of exceptions, no longer applies where the transcript of the record contains a specific order of the court overruling and denying the motion as such order presumably would not have been entered had the motion not been made, and as it need not have been in writing nor an exception to the ruling preserved, the reason for the rule has failed.

3. Theaters and shows, § 4 * —when evidence sufficient to sustain verdict for damages for personal injuries. A verdict for the plaintiff for personal injuries is not manifestly against the weight of evidence where the evidence tends to show that defendant eonductéd a theater on his premises, in the lobby of which were pictures and advertisements hung for the public to come in and see, and that in the wall of the lobby a radiator was so insecurely fastened that without apparent negligence on the part of the plaintiff, a minor, it fell out of its place upon him and injured him while he was looking at the pictures, the circumstances being such as to raise the inference of neglect on the part of defendant to have the radiator so fastened that it would not fall over from contact with it such as might be expected in a public place.

John E. Anderson, for defendant in error; George B. Cohen, of connsel.

*

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

Mr. Justice Barnes

delivered the opinion of the court.