#### Annie Besserman, Administratrix of Estate of Steve Besserman, Deceased, Defendant in Error, v. Walker D. Hines, Director General of Railroads, Plaintiff in Error.

1. Railroads, § 690 * —when contributory negligence prevents recovery for injuries. The fact that the statute makes the running of a railroad train through a municipality at an unlawful rate of speed prima facie negligence, and that therefore the running of the train in question, in an action for the death of plaintiff’s intestate who was killed while riding in an automobile which was crossing defendant’s railroad at unlawful speed, was presumed to be negligence, did not give plaintiff the right to recover where the decedent was guilty of contributory negligence.

2. Railroads, § 659*—what constitutes contributory negligence. Where plaintiff’s intestate, an adult, while intoxicated, had crowded with three other intoxicated men into a small inclosed automobile, at night, and knew that the car could not he operated efficiently by its inexperienced drunken driver, he was guilty of contributory negligence which precluded' recovery, where a whistle was blown and the train and crossing bells were rung while the train in question, with its headlight visible for miles, was approaching the village crossing at a rate of speed in violation of the statute.

Error to the Circuit Court of Macoupin county; the Hon. E. S. Smith, Judge, presiding. Heard in this court at the April term, 1920.

Reversed with finding of fact.

Opinion filed October 27, 1920.

Patton & Patton, for plaintiff in error; William L. Patton, Henry L. Patton and Silas H. Strawn, of counsel.

Thomas Rinaker and James H. Murphy, for defendant in error.

*

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

Mr. Justice Eldredge

delivered the opinion of the court.

This is a writ of error sued out to reverse a judgment of the circuit court of Macoupin county for *607$2,000 rendered in an action on the case by defendant in error against plaintiff in error as damages for the death of one Steve Besserman, who was killed in a collision between an automobile in which he was riding and the engine of a passenger train at a street crossing in Nilwood, Illinois, at about 11 o’clock on the night of Saturday, March 30, 1918.

The declaration contained three counts. The issues presented by the third count only were permitted by the trial court to go to the jury. This count charges that while Steve Besserman with due care was riding across the railroad of the Chicago & Alton Railroad Company at a street crossing in the Village of Nilwood, the plaintiff in error negligently drove a passenger train across said street at a rate of speed in violation of an ordinance limiting the same to 10 miles an hour, whereby the automobile was struck and Besserman was killed.

The Chicago & Alton Railroad runs northeasterly and southwesterly through the Village of Nilwood and crosses Morean street at right angles about 100 feet north of the railroad depot. On the north side of the crossing is an electric automatic alarm signal which begins to ring when the circuit is closed by an approaching train at a point over 2,000 feet south of the crossing and keeps ringing continuously until after the train has passed over the crossing. Nilwood is a small village of about 400 inhabitants and is not thickly built up in the neighborhood of this railroad crossing. There is an open space south of Morean street to the depot of 100 feet or more on which there are no obstructions of any kind. There is a shop and also a store on the south side of the street east of the tracks with an open space of about 60 feet between them. This open space is 70 feet east of the tracks. The Village of Carlinville is from 6 to 8 miles from Nil-wood and the tracks run perfectly straight between these two points over a flat country so that an electric *608headlight of a locomotive, as it leaves Carlinville can be seen by a person standing on or near the track at the crossing in question in Nilwood. The proofs show that the passenger train in question at the time of the accident was running at a speed of 35 miles an hour or more, also that there was an ordinance of the Village of Nilwood limiting the speed of such trains through the village to 10 miles per hour.

On the day in question, one John Heslop, who lived in the town of Virden, bought in the City of Springfield a one-seated inclosed (or coupé) Ford automobile. He had never owned or operated an automobile before and he had hired a boy to drive the car for him as far as Thayer, a village about 2 miles north of Virden. The boy drove the car past the Village of Auburn, which is 3 or 4 miles from Thayer, from which place Heslop drove it to Thayer. At Thayer, the boy left Heslop and the latter ran the car to Virden, a distance of about 2 miles, and arrived at the latter .place about 5 o’clock in the afternoon. From that time until about 11 o’clock at night Heslop drove the car about Virden and back to Thayer and back again to Virden, and spent the time in giving his friends rides in his new car. The greater weight of the evidence shows that frequent stops were made by Heslop and his friends at the different saloons in Virden and Thayer and that at 10:30 o’clock that night Heslop, Besserman and also two men named Hammond and Fyfq were intoxicated. While in a drunken condition in one of the saloons in Virden, they were talking about going to Benld and Gillespie, towns south of Carlin-ville. These four men left the saloon and Heslop had a gunny sack containing a dozen bottles of beer which he brought from the saloon and put into the car. Heslop, Hammond and Fyfe got into the car and there was some altercation between them and Besserman in which Besserman insisted upon also getting in and the other three tried to keep him out, but finally Bes ser*609man got into the coupé with the other three men. About 11 o’clock, they reached the Village of Nilwood and were seen going towards the railroad crossing “hollering and singing.” A few minutes later they were struck by a northbound passenger train at the crossing. The only eyewitness to the accident was the engineer on the engine who testified that when his engine was passing the south end of the depot, he saw the automobile going onto the track and that he immediately shut, off the steam and applied the emergency air brake, but the train could not then be stopped in time to avoid the collision.

The evidence is conclusive that all the statutory signals were given by the approaching train. Several disinterested witnesses testified that the whistle was blown and that the bell was' rung and the automatic bell at the crossing was also ringing and several of such witnesses testified that the noise of the approaching train was distinctly heard as it was a cold, clear, still night. The engine struck the automobile and the ' four men therein were instantly killed. After the accident, the gunny sack was found saturated with beer with the broken bottles therein, also, two broken whisky bottles were found. The statutes of this State make the running of a railroad train through a municipality at an unlawful rate of speed prima facie negligence, and it must be presumed that the servants of plaintiff in error, in running the train in question through the Village of Nilwood at a speed greater than that prescribed by ordinance, were guilty of negligence. Besserman, however, was charged with the exercise of due care for his own safety, and if he was guilty of contributory negligence, defendant in error cannot recover in this case. Flynn v. Chicago City Ry. Co., 250 Ill. 460.

The Ford coupé was a small inclosed car and was constructed to carry two persons only. Heslop, its driver was inexperienced and intoxicated and Fyfe and *610Hammond also intoxicated as well as Besserman. Those four grown men, all of whom were intoxicated, crowded into this small Ford coupé together with a gunny sack of beer and started on their journey. Besserman knew that his companions were intoxicated, that the small inclosed car could not be operated efficiently/crowded as it was and driven by a drunken inexperienced driver. While, ordinarily, the negligence of. the driver of a vehicle cannot be imputed to a passenger therein, yet, from the facts in this case, all men in this coupé were guilty of negligence in permitting themselves to ride therein under the conditions and in the manner mentioned. South Chicago City Ry. Co. v. Dufresne, 200 Ill. 456; Johpson v. Galesburg & K. Elec. Ry. Co., 193 Ill. App. 387. If either one of them had used, or was in a condition to have used, either of their senses of sight or hearing, he could not have failed to have known of the approaching train and the accident could have been avoided regardless of the speed thereof.

The judgment of the circuit court is reversed and the clerk is directed to embrace in the judgment of this court a finding of the following fact: The court finds as an ultimate fact from the evidence that Steve Besserman was guilty of negligence which contributed to his death.

Beversed with finding of fact.