#### Thornton Akers, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.

(Not to be reported in full.)

Appeal from the Circuit Court of Coles county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the October term, 1914.

Affirmed.

Opinion filed October 13, 1915.

Statement of the Case.

Action by Thornton Akers, plaintiff, against Cleveland, Cincinnati, Chicago & St. Louis Railway Company, defendant, to recover damages for breach of a contract to furnish within a certain time a car of specified dimensions in which to load an interstate shipment of hogs. From a judgment for plaintiff, defendant appeals.

George B. Gillespie, for appellant; L. J. Hackney and F. L. Littleton, of counsel.

*15Abstract of the Decision.

1. Appeal and error, § 1411 * —when verdict not set aside as unsupported by evidence. A verdict on conflicting evidence will not be set aside on appeal as unsupported by the evidence unless manifestly contrary to the weight of the evidence.

2. Instructions, § 115*—when requested instruction properly refused as inapplicable to issues. In an action by a shipper against a carrier to recover damages for breach of a contract to furnish within a certain time a car of specified dimensions in which to load an interstate shipment of hogs, a requested instruction framed on the theory that the issue being tried was whether defendant exercised due diligence to furnish the car ordered within a reasonable time, held properly refused as inapplicable to the issues.

3. New trial—when party estopped to complain of admission of incompetent evidence. A party who is participating in a trial, and who calmly sits by and hears incompetent evidence introduced without interposing any objection thereto, cannot on a motion for new trial be heard to complain that it was admitted.

4. Appeal and error, § 450*—when objection to admissibility of evidence not considered on appeal. A party who participated in a trial and heard incompetent evidence without objection is estopped to complain on appeal of the admission of such evidence.

Edward C. Craig, Donald B. Craig and James W. Craig, Jr., for appellee.

*

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

Mr. Justice Graves

delivered the opinion of the court.