#### John Kick, Appellee, v. Calumet & South Chicago Railway Company, Appellant.

Gen. No. 23,325.

(Not to he reported in full.)

Appeal from the Superior Court of Cook county; the Hon. William Peotmoeb Cooper, Judge, presiding. Heard in this court at the March term, 1917.

Reversed with finding of fact.

Opinion filed December 3, 1917.

Statement of the Case.

Action by John Kick, plaintiff, against Calumet & South Chicago Railway Company, defendant, to recover damages for personal injuries. From a judgment for plaintiff for $900, defendant appeals.

*326Abstract of the Decision.

1. Street railroads, § 104 * —when doctrine that negligence of driver of vehicle cannot be imputed to occupant is inapplicable. The rule that, in an action to recover for personal injuries through the collision of a vehicle with a street car, the negligence of the driver cannot he imputed to one riding with him cannot be applied where the driver is under the control of and driving as directed by the injured person.

2. Street railroads, § 131*—when evidence shows that driver of vehicle was under control of injured person. In an action to recover for personal injuries to one received from the collision of the vehicle in which he was riding, with a street car,. evidence held to show that the injured person was in control of the driver.

'3. Street railroads, § 131*—when evidence shows knowledge of danger in crossing track. In an action to recover for personal injuries to one received through the collision with a street car of a vehicle in which he was riding and of which he was in control, evidence held to show that plaintiff, in the exercise of ordinary care, must have known that if he instructed the driver to cross the track and the driver so did, a collision would be inevitable and that plaintiff risked the motorman’s being able to stop the car.

4. Street railroads, § 97*—when person in control of vehicle crossing track is guilty of contributory negligence. One who, in control of a vehicle, orders the driver to cross a car track, when to do so will render a collision with an approaching car inevitable unless the motorman succeeds through extraordinary efforts in stopping the car, is guilty of contributory negligence preventing a recovery for injury received by the collision.

5. Street railroads, § 131*—when evidence shows lack of negligence by motorman in operation of car. Evidence in an action to recover for personal injuries through a collision between a vehicle and a street car, held to show that the motorman had no reason *327to believe that the vehicle would attempt to cross, and that he did all that was possible to stop the car, but that stopping it before the collision occurred was impossible.

*326William H. Symmes and Frank L. Kriete, for appellant; J. R. Guilliams and Warner H. Robinson, of counsel.

John A. Bloomingston, for appellee.

*

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

*

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

Mr. Justice McSurely

delivered the opinion of the court.

*3276. Stbeet baileoads, § 73 * —when failure to ring gong or absence of lights is immaterial. Failure to ring a gong or have lights upon an approaching street car is net important where one injured in crossing the track admits having seen the car approaching before his vehicle went upon the track.

7. Stbeet baileoads, § 131*—when evidence shows contributory negligence in crossing track with vehicle. Evidence in an action to recover for personal injuries through colliding with a street car in crossing the track, held to show plaintiff’s contributory negligence.