Fourth District

—August Term, 1887.

#### Chicago & Alton Railroad Company v. John Stites.

Railroads—Personal Injury—Defective Trach—Notice—Insufficiency of Evidence.

In an action by a yard switchman against a railroad company to recover damages ¡or a personal injury, this court, upon a second appeal, again reverses the judgment, the evidence being insufficient to support the verdict for the plaintiff.

[Opinion filed April 20, 1888.]

Appeal from the Circuit Court of St. Clair County.

Messrs. Luke H. Hite and Brown & Kirby, for appellant.

Messrs. K. A. Halbert and Flannigan & Canby, for appellee.

Per Gxvriam.

This case was before us at the August tern^ 1SS6, when we reversed the judgment for insufficient evidence appearing in the record to entitle the plaintiff to recover, and *431remanded the cause for a new trial. The case is reported in 20 Ill. App. 648, where will be found a sufficient statement of the facts. The appellee, upon the case being remanded, amended his declaration by averring that tlie track, track rails and switch were defective. In the former case the negligence alleged was confined to the defective condition of the switch alone.

On the re-trial testimony was introduced tending to show that a lip had formed upon the end of the rail which caused the engine to jump from tlie main to the side-track. It would serve no useful purpose for ns to again notice the evidence in detail, for after a careful examination of all of it, and giving it the best consideration our ability will allow, we are constrained to say that it is as entirely insufficient to support tlie present verdict in favor of appellee as it was in the former case. Even if a lip existed that made the track dangerous, there is the same lack of proof of notice to the company of the defect as in the former case. We adhere to what we then said as to the law applicable to the case, and applying it to the facts as we find them, in our opinion no right of recovery is shown, and the judgment will be reversed.

Judgment reversed.