#### Chicago West Division Railway Company v. Sereno W. Ingraham.

Street Railway Companies—Personal Injuries—Negligence—Evidence —Preponderance of—Instructions.

An instruction setting forth that a street railway companyhas an absolute right of way over its track, against all foot passengers and vehicles, without regard to circumstances, should not be given.

[Opinion filed July 2, 1889.]

Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.

Messrs. W. B. Keep and Edmund Fuethmann, for appellant.

*352Messrs. Hynes & Donne, for appellee.

Garnett, P. J.

A trial of this action on the case, for personal injuries to appellee, before the court below and a jury, resulted in a verdict and judgment for $1,000 against appellant.

It is insisted that the verdict was contrary to the clear preponderance of the evidence and should, for that reason, have been set aside by the trial court. Seven witnesses were called by appellant, four of them giving an account of the occurrence which was contradicted, in what may be regarded as the turning point of the case, by the other three, and the account given by the latter agreed, in substance, on that point, with the evidence of the appellee’s witnesses. Moreover the-evidence of the four witnesses who support appellant’s theory, is open to some fair criticism on the ground that it presented a state of facts which was not consistent with the natural order of things, and that feature of the case was no doubt considered as entitled to great weight. Allowing the jury their long recognized privilege of fairly deciding upon all disputed questions of fact, we must decline to interfere with their verdict in this case, as it is not at all clear that the preponderance of the evidence was not with appellee.

The refusal of appellants ninth instruction, in the form requested, is also urged as a ground for reversal. The instruction as asked asserted an absolute right of way in appellant over its track, against all foot passengers and vehicles, without regard to the circumstances. So broad a claim has not before been presented, so far as we are informed, and, if well taken, is a complete defense for such corporations in all .cases of injury to persons or property on their tracks From that proposition we must be permitted to dissent, as it is clearly untenable. The judgment is affirmed.

Judgment affirmed.