#### Vincent Buszkiewicz, Administrator, Appellee, v. Chicago & Alton Railroad Company, Appellant.

Gen. No. 22,894.

(Not to be reported in full.)

Appeal from the Circuit Court of Cook county; the Hon. David F. Hatchett, Judge, presiding. Heard in this court at the October term, 1916.

Affirmed.

Opinion filed June 11, 1917.

Certiorari denied by Supreme Court (making opinion final).

Statement of the Case.

Action by Vincent Buszkiewicz, administrator of the estate of Josef Swajkowski, deceased, plaintiff, against the Chicago & Alton Railroad Company, defendant, to recover for the death of deceased, who was killed by a freight train belonging to defendant at .a street crossing. From a judgment for plaintiff for $4,250, defendant appeals.

Winston, Payne, Strawn & Shaw, for appellant; Edward W. Everett and John Irving Pearce, of counsel.

Frank P. Sadler, for appellee.

*

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

Mr. Presiding Justice McSurely

delivered the opinion of the court.

*2Abstract of the Decision.

1. Railroads, § 733 * — when evidence is sufficient to show negligence in operation of train approaching street crossing. In an action to recover for the death of a pedestrian who was killed as he stepped on a westbound track on the northeast side of a railroad crossing by a train at night, the sight of which was obstructed by the building, which was situated at a curve in the track, where it appeared that it was the custom of defendant not to operate its crossing gates at the hour of the. accident, evidence held sufficient to show thitt the accident was caused by the negligence of defendant in maintaining at such a dangerous crossing no device to warn or guard pedestrians of the approach of a train, and also in running the particular train at an illegal rate of speed without warning signals.

2. Railroads, § 755* — when contributory negligence of deceased in crossing tracks is question for jury. In an action to recover for the death of a pedestrian who was kill,ed at night as he stepped on a westbound track on the northeast side of a railroad crossing by a westbound train, the view of which was obstructed by a building and telegraph pole on the corner at. a curve in the track, so that an approaching train could not be seen until it was very near the crosswalk, where there was evidence that deceased had been in a saloon but was not intoxicated; that he looked in the direction from which the train was coming before he stepped on the tracks; that he was not familiar with the crossing and not accustomed to crossing it at night, and it was not shown that he was aware of the custom of defendant not to operate the gates at the hour in the evening of the accident, held that it was a question for the jury whether deceased was guilty of contributory negligence, and that the evidence was sufficient to sustain such a finding.