John B. Smith, Administrator, Appellee, v. Peter Schoenhofen Brewing Company, Appellant.

Gen. No. 22,311.

(Not to he reported in full.)

Appeal from the Superior Court of Cook county; the Hon. Joseph H. Fitch, Judge, presiding. Heard in this court at the March term, 1916.

Reversed with finding of fact.

Opinion filed October 30, 1916.

Statement of the Case.

Action by John B. Smith, administrator of the estate of Alfred Smith, deceased, plaintiff, against the Peter Schoenhofen Brewing -Company, a corporation, defendant, in the Superior Court of Cook county, to recover for the death of plaintiff’s intestate as a result of injuries sustained by being run over by a heavy truck belonging to defendant. Prom a judgment for plaintiff for $6,000, defendant appeals.

*553Abstract of the Decision.

Automobiles and gabages, § 3*—when evidence shows driver not negligent. In an action to recover for the death of a boy fourteen *554years of age, by reason of injuries sustained by being run over by a heavy truck, evidence examined and held to show that the driver of the truck was not negligent.

*553There have been three trials of this cause, in two of which the jury disagreed. Four disinterested eyewitnesses testified substantially that the loaded truck was going south on Union avenue at a moderate rate of speed; that it was making considerable noise; that deceased was walking south on Union avenue on the west sidewalk between 33rd and 34th streets; that as the truck approached, the boy ran out in the street in a southeasterly direction, and for about ten feet ran alongside the truck behind the front wheels, then caught hold of it near its center on the right side and hung there a short time, and then, seeming to lose his hold, fell down in front of the rear wheel, which passed over him. Testimony of these witnesses was unanimous that the front part of the truck had passed deceased when he left the curb, and that he was at no time in front of the front wheels of the truck after he got out in the street, and that the point where he grabbed hold of the truck was behind the driver’s seat.

The chauffeur gave substantially similar testimony. There was no testimony in direct conflict with that adduced by defendant, though three witnesses gave testimony from which it was sought to be inferred that deceased was in front of the truck when struck.

Miller, Gorham & Wales, for appellant.

Charles W. Stiefel and Johh B. Heinemann, for appellee.