#### Mary McCausland, Appellee, v. Chicago City Railway Company, Appellant.

Gen. No. 21,890.

(Not to he reported in full.)

Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1915.

Reversed with finding of fact.

Opinion filed March 7, 1916.

Rehearing denied March 20, 1916.

Statement of the Case.

Action by Mary McCausland, plaintiff, against Chicago City Railway Company, defendant, for damages for personal injuries. From a verdict and judgment for plaintiff, defendant appeals.

Defendant while rehabilitating its street car tracks in Chicago laid a temporary north and south track on *201Halsted street at the intersection of Thirty-sixth street. When plaintiff was about to board defendant’s southbound car at that point, she alleged, the car swayed and struck, causing the injury sued on. The rail nearest plaintiff (the west rail) was about three-quarters of an inch higher than the other rail (east rail) of the southbound track. Defendant’s men were detailed to watch the temporary track to keep it surfaced, lined and gauged. The west rail (nearest plaintiff) was four feet from the curbstone. The overhang of defendant’s cars was twenty-two to twenty-four inches on each side. Plaintiff testified that she stood one foot from the curb while waiting for the car, and was so standing when the car struck her.

Abstract of the Decision.

1. Carriers, § 421 * —when intending passenger struck by street car guilty of contributory negligence. An intending passenger who stands so close to a moving street car on which he intends to take passage as to be struck is guilty of contributory negligence.

2. Appeal and error, § 1802*—when case reversed with finding of fact. When it is patent from the evidence that plaintiff cannot maintain the action, the Appellate Court should reverse with a finding of fact.

3. Negligence, § 90*—when contributory negligence bars recovery. There can be no recovery when the accident, on account of which suit is brought, could not have happened but for plaintiff’s contributory negligence, even though defendant was guilty of negligence which may have contributed in some way to bring about the accident.

Franklin B. Hussey and Charles Le Roy Brown, for appellant; John B. Guilliams, of counsel.

Thomas E. Rooney and Ferdinand Gross, 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.