It is further contended that the court erred in giving defendant's instructions numbered 2, 12 and 13. The testimony offered on the part of appellant tended to prove that Martin, the driver of the ice wagon, and his helper, were coming south on State street at a rapid rate of speed; that when Nineteenth street was reached the driver turned his horses as though he intended going west on that street; that he then turned in a circle to the south, made another circle to the west and entered the north side of Archer avenue, some of the witnesses describing the course he pursued in making these turns as forming the letter S; that the driver and his helper were both sitting on a seat at the front end of the wagon with a high partition at the back of the seat; that the driver was driving with a loose line, so that he could not quickly or properly control his team; that the driver was intoxicated and his helper was whipping the horses with the loose ends of the lines; that as the wagon passed the street cars standing on the tracks in Archer avenue near the cross-walk, appellant's deceased came past the west end of the cars standing in Archer avenue; that he collided with one of the horses and was knocked down and run over by the wagon, which went from eight to twentyfive feet beyond the body, according to the testimony of the various witnesses, before the team could be brought to a stop. It was the theory of appellant upon the trial that the driver of the wagon was driving in a careless and reckless manner before and at the time he reached the place of the accident; that he was driving at a high rate of speed and did not have proper control of his team. Under this state of the record the instructions objected to were given. Those instructions are as follows:

2. "The court further instructs you that if you believe, from the evidence, that the plaintiff's intestate suddenly started across the street ahead of defendant's wagon in question, and that the driver of said wagon did not see or have a reasonable opportunity to see that the plaintiff's

intestate intended so doing in time to avoid a collision with the said deceased, then your verdict must be not guilty."

12. "The court instructs you that if you believe, from the evidence, that at and just before the time of the accident in question there was one or more street cars standing in Archer avenue a little west of the west line of State street, and if you further believe that the plaintiff's intestate, Samuel Novitsky, ran across Archer avenue in a northerly or northeasterly direction west of said street car or cars and near to the same, and if you further believe that the said Samuel Novitsky came within the range of the vision of the driver of the defendant's wagon when said wagon and team were so close to the said Samuel Novitsky that the said driver by the exercise of ordinary care in driving said team and in trying to stop said team was unable to avoid colliding with and fatally injuring said Samuel Novitsky, then your verdict in this case must be not guilty. And if you believe the facts as above stated, you cannot find the defendant guilty although you should believe that the defendant's driver was under the influence of liquor."

13. "The court instructs you that if you believe, from the evidence, that the plaintiff's intestate collided with defendant's team at or about the westerly end of one or more street cars standing in Archer avenue entirely west of State street, and if you further believe that the said Samuel Novitsky ran northerly from the westerly end of said car or cars and came within the range of vision of the driver of defendant's wagon when said team and wagon were so close to said Samuel Novitsky that the driver of said wagon, by exercising ordinary care in driving and in attempting to stop, could not avoid running into and fatally injuring said Samuel Novitsky, then your verdict must be not guilty. And if you believe the facts as above stated, you cannot find the defendant guilty even though you should believe the defendant's driver was under the influence of liquor:"

Each of these instructions directs a verdict, and each of them ignores entirely the testimony on the question of the negligence of the driver and the lack of the exercise of ordinary care on his part, offered by appellant. It was not sufficient that the driver of the wagon should begin to exercise ordinary care from the moment the boy came within the range of his vision. He could see the cars standing in the street at or near the cross-walk. He admitted that he knew that this was a crowded thoroughfare at all times of the day and that many people were liable to be crossing Archer avenue on the west side of State street. It was incumbent upon him to exercise ordinary care in approaching this cross-walk and in passing these cars, as well as to exercise ordinary care after anyone came in view around the west end of the cars. By these instructions the jury were told, in effect, that the only duty devolving upon the driver was to begin to exercise ordinary care after he saw the boy, without regard to the rate of speed he was traveling, the manner in which he was handling his team, his condition as to sobriety, and as to whether, up to that point, he had been in the exercise of ordinary care. The court erred in giving these instructions.

The seventeenth instruction told the jury that if they believed, from the evidence, that the parents of the deceased, or either of them, were negligent in allowing him to go upon the street at the time and place of the accident they should find appellee not guilty. It is complained that there is no evidence upon which to base this instruction. Appellant is in no position to complain of the giving of this instruction on behalf of appellee as he asked and had given an instruction submitting this same question to the jury.

Appellee contends that the admission of the coroner's verdict in evidence is no longer open to question, for the reason that on the first appeal to the Appellate Court the case was reversed for the refusal of the court to admit the verdict in evidence, and that that holding has become the

law of the case and is binding upon this court. This question has been conclusively settled contrary to the contention of appellee. Bailey v. Robison, 244 Ill. 16.

Appellee also contends that the three instructions, numbered 2, 12 and 13, complained of, were given on the second trial, and as appellant on the first appeal to the Appellate Court failed to assign cross-errors questioning the action of the court in giving them he is now estopped to question those instructions. There is no force to this contention. Appellant was not injured by the giving of these instructions upon the second trial, as the verdict and judgment were in his favor. He has the right now, judgment having been rendered against him, to complain of the action of the court in giving these instructions.

For the errors indicated the judgments of the Appellate and superior courts are reversed and the cause is remanded. to the superior court for a new trial.

Reversed and remanded.

(No. 10942.)

THE CHICAGO RAILWAYS COMPANY, Plaintiff in Error, vs. THE INDUSTRIAL BOARD OF ILLINOIS et al. Defendants in Error.

Opinion filed December 21, 1916.

I. WORKMEN'S COMPENSATION-provision of Workmen's Compensation act of 1913 regarding employers in extra-hazardous occupations is not unconstitutional. There is no material distinction between the Workmen's Compensation act of 1913 and the act of 1911 as regards employers engaged in extra-hazardous occupations, and the act of 1913 is not subject to the constitutional objections that it violates the right of freedom of contract, is special and class legislation, and grants special and exclusive privileges and immunities to some individuals which are denied others, or that it deprives the employer of the right of trial by jury. (Deibeikis v. Link-Belt Co. 261 Ill. 454, followed.)

2. SAME-the fact that an employee was negligent does not take the act which results in an injury out of the course of employment.

Where a street railway employee is killed by the sudden jumping forward of one car into another while he was attempting, as part of his duties, to connect the trolley of the former car to the current, his injury must be regarded as one received in the course of his employment, irrespective of the question of his negligence and his disobedience of the rules of the company in leaving his car in a condition where it would start when the trolley was connected.

3. SAME the extra-hazardous occupation of "carriage by land or water" includes street railways. A street railway company is within the provision of paragraph (b) of section 3 of the Workmen's Compensation act of 1913, which specifies, among the extrahazardous occupations, "carriage by land or water and loading and unloading in connection therewith," as the words "loading and unloading" apply as well to passengers as to freight and to street railways as well as to steam railways.

4. SAME-employer cannot relieve himself from liability under the Workmen's Compensation act by contract with employee. It is contrary to the policy of the Workmen's Compensation act of 1913 that an employer who has come under the provisions of the statute by virtue of his failing to file an election in writing to the contrary shall relieve himself from liability under the act by private agreement or contract with the employee.

WRIT OF ERROR to the Circuit Court of Cook county; the Hon. OSCAR M. TORRISON, Judge, presiding.

THOMAS H. SLUSSER, and FRANK L. KRIETE, (W. W. GURLEY, and J. R. GUILLIAMS, of counsel,) for plaintiff in

error.

A. S. LANGILLE, (DANIEL L. CRUICE, of counsel,) for defendants in error.

Mr. JUSTICE FARMER delivered the opinion of the court:

This is a writ of error to the circuit court of Cook county to review a judgment of that court confirming an award of the Industrial Board against plaintiff in error in favor of the administrator of the estate of James Balla, deceased, under the Workmen's Compensation act of 1913. Balla was a motorman employed by plaintiff in error in