#### Julian U. Malmin, Defendant in Error, v. Julius Sternheim, Plaintiff in Error.

Gen. No. 22,150.

(Not to he reported in full.)

Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in this court at the October term, 1916.

Affirmed.

Opinion filed December 18, 1916.

Statement of the Case.

Action by Julian IT. Malmin, plaintiff, against Julius Sternheim, defendant, to recover for personal injuries sustained by the plaintiff’s being struck, while bathing at a public bathing beach, by a motor boat operated by the defendant. To review a judgment for plaintiff, defendant prosecutes a writ of error.

The testimony of plaintiff and his witnesses tends to prove that between three and four o’clock on the afternoon of Saturday, July 17, 1915, the plaintiff, in company with two friends, was bathing in Lake Michir gan at Wilson Beach in Chicago; that at the time of the accident he was about one hundred feet east of the shore line; that a large number of people were bathing at the beach at the time; that just before being struck plaintiff had dived, and as he came to the surface of the water a motor boat driven by the defendant struck him.

Defendant testified that he was driving the motor boat along the beach in a northerly direction; that when he reached the beach he saw 4 or 5 people in the water about one hundred feet ahead of him and eight feet west of the line upon which his boat was moving; that he blew his signal horn and went “right along on my right of way. ’ ’

The evidence shows that there was a diving stand built out in the water at a point from twenty-five to fifty feet south of the place where plaintiff was struck. In testifying, the defendant said that in his course *215north he ran about one hundred feet east of this stand, and that he was going to the beach to go in bathing. Other witnesses testified that there were about 2,000 people bathing in the water in the immediate vicinity of the place where this accident happened.

Soboroee & Newman, for plaintiff in error; Hyman Soborofe, of counsel.

Lucius J. M. Malmin, for defendant in error.

Abstract of the Decision.

1. Navigable waters, § 11 * —when evidence justifies judgment for bather injured by motor boat. In an action for personal injuries sustained by .the plaintiff while bathing at a public bathing beach as the result of being struck by the defendant’s motor boat, evidence held to justify a judgment for the plaintiff.

2. Navigable waters, § 11*—what degree of care required in operating motor boat at bathing beach. Even if a person has a legal right to operate a motor boat at a crowded bathing beach, he must be held to the care which an ordinarily prudent person would exercise under such circumstances.

*

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

Mr. Justice Dever

delivered the opinion of the court.