#### The Chicago and Alton Railroad Company v. James Redmond.

Opinion filed February 14, 1898.

1. Appeals and errors—Appellate Court's affirmance settles questions of negligence and due care. A judgment of the Appellate Court affirming a judgment against a railroad company in an action for personal injuries, conclusively settles the questions of the defendant’s negligence and the plaintiff’s exercise of due care.

2. Same—/udgment will not be reversed if declaration contains one good count applicable to evidence. A judgment will not be reversed for alleged failure of the evidence to sustain certain counts, if there is one good count in the declaration to which the evidence applies.

3. Pleading—ichen allegation of negligence is sufficiently specific. An allegation of negligence in a declaration against a railroad company that “the defendant, by its said servants, so carelessly and improperly drove and managed the said locomotive and train that by and through the negligence and improper conduct of the defendant, by its said servants in that behalf, the said locomotive engine and train ran into and struck against the plaintiff,” is sufficiently specific, after verdict, to support judgment for plaintiff.

Chicago and Alton R. R. Co. v. Redmond, 70 Ill. App. 119, affirmed.

Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Francis Adams, Judge, presiding.

T. J. Scofield, for appellant.

Wing, Chadbourne & Leach, for appellee.

Mr. Justice Carter

delivered the opinion of the court:

The Appellate Court has affirmed a judgment of the circuit court of Cook county in favor of appellee, against appellant, for a personal injury received by him at Lemont, in that county. Appellee, a boy about sixteen years old, living at Hastings, about a mile north of Lemont, had attended services at a church in Lemont on the Sunday *348morning he was injured, and in company with several boys was standing at the intersection of Canal and Stephens streets, in Lemont, about one hundred feet north of the crossing of Stephens street and appellant’s railroad, when one Foley, driving a team of horses going in a trot and hitched to a beer wagon, passed north on Stephens street toward the railroad crossing, to Hastings. Several of the boys, including appellee, climbed upon the rear end of the wagon, and just as appellee stepped over the chain across the rear end of the wagon bed, and while passing the railroad crossing, appellant’s passenger train struck the hinder part of the wagon and inflicted the injury upon the appellee complained of. Appellant had for the previous year maintained gates or bars at this crossing, but on the morning in question the gate-keeper was not at his post and the gates were open.

It has been settled by the judgments below that the injury was caused by the negligence of appellant, while appellee was using due care for his own safety. We shall not, therefore, follow counsel in their extended discussion of the facts bearing upon this question. The appellant, however, makes the point that the first count of the declaration is not sufficient to support the judgment, for the reason that it does not allege any specific negligence of appellant which caused the injury. This count, after setting forth in apt language that the defendant, by its servants, was running its locomotive engine and train upon its said road, and that the plaintiff was riding in a wagon along the public highway at the crossing with care and diligence on his part, alleged that “defendant, by its said servants, so carelessly and improperly drove and managed the said locomotive and train, that by and through the negligence and improper conduct of the defendant, by its said servants in that behalf, the said locomotive engine and train ran into and struck with great force and violence against the plaintiff.” A declaration in substantially the same language was held good on de*349murrer in Chicago City Railway Co. v. Jennings, 157 Ill. 274. If good on demurrer it is surely sufficient after verdict.

The declaration contained five counts. It is not claimed by appellee that there was any evidence to sustain the last three counts. The second count alleged-, among other things, failure to ring the bell or sound the whistle before approaching the crossing, and appellant insists such failure was not shown. There was a conflict of testimony on this point, which has been settled against appellant. But even if there was no evidence in support of this count the first count is sufficient to support the judgment.

It is next said the trial court erred in permitting certain questions put to appellant’s witnesses on cross-examination to be answered, which tended, as we think, to test the knowledge of these witnesses as to the speed of the train. They had testified on their direct examination, one of them that the train was running at the time not to exceed four miles, and the other eight miles, an hour. No unreasonable latitude was allowed appellee in the cross-examination on this point.

Counsel next complain that error was committed in refusing the sixteenth instruction asked by appellant, respecting the duty resting upon appellee to observe due care and caution for his own safety. The jury were fully instructed on this point in several instructions given to' them on behalf of appellant, and it was not error to refuse another on the same point.

Some other criticisms are made upon the rulings in respect to other instructions, but we regard them as unimportant.

The judgment of the Appellate Court is affirmed.

Judgment affirmed,.