#### Owen Murphy, Appellee, v. Gunning System, Appellant.

Gen. No. 21,325.

(Not to be reported in full.)

Appeal from the Superior Court of Cook county; the Hon. Clinton F. Irwin, Judge, presiding.

Heard in this court at the June term, 1915.

Reversed and remanded.

Opinion filed January 3, 1916.

Statement of the Case.

Action on the case for personal injury by Owen Murphy, plaintiff, against Cunning System, defendant. Plaintiff recovered against the defendant in the *370Superior Court a judgment on the verdict of a jury for $3,000, and defendant appeals.

Abstract of the Decision.

1. Appeal and error, § 1725 * —when refusal to eliminate count error. In an action by an employee against an employer to recover for injuries received by falling from a framework, where on a former appeal the Appellate Court decided that plaintiff could not maintain an action for a defect in the footboard on which he was working, it is error to refuse to eliminate a count in the declaration charging as the sole act of negligence against defendant that it failed to maintain the footboard in a reasonably safe condition.

2. Appeal and error, § 1815 * -—when instructions misleading. Instructions which permit the jury to predicate their verdict on a count of the complaint based on a theory of negligence which had been eliminated from the case on a former appeal are misleading.

This appeal is prosecuted from the second trial of the cause. On the first trial a verdict was instructed against plaintiff and the Appellate Court reversed the judgment entered on that verdict for the reason that in its opinion the facts found in the record should have been submitted to the jury for determination. The pleadings are the same as at the first trial. The syllabus on the former appeal appears in 184 Ill. App. 455.

David K. Tone, for appellant.,

Gorman, Pollock, Sullivan & Livingston, for appellee.

*

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

Mr. Justice Holdom

delivered the opinion of the court.