delivered the opinion of the court:
The substance of the finding of facts incorporated in the judgment of the Appellate Court is, that the omission of the railway company to warn Manthei, before moving the cars, that they'were about to be moved, was not the cause of the accident; that Manthei, in the absence of such notification, knew the cars were about to- be moved, and that the railway company was not guilty of any negligence charged in the declaration.
The railway company offered, no evidence, but, upon its motion for a peremptory instruction being overruled, submitted the case to the. jury. Plaintiff in error contends that there was no conflict in the evidence offered, and that there was no matter of fact in controversy in reference to which the Appellate Court had authority to malee a finding of fact.
The principal case in this State upon this subject is Jones v. Fortune, 128 Ill. 518, where it was said: “Under our decisions it is competent for the trial, court to exclude the evidence from the jury where it has no legitimate tendency to establish the cause of action alleged, and the Appellate Court is authorized, on appeal, to do what it shall hold the trial court should have done, in this respect, upon the trial. (Commercial Ins. Co. v. Scammon, 123 Ill. 601.) But it is manifest that if the Appellate Court shall reverse the trial court for error in its rulings of law it must remand the cause for a new trial, unless it shall find that the evidence does not tend to prove the cause of action alleged, for otherwise it will deprive the plaintiff of the guaranteed right of trial by jury. If the Appellate Court shall refuse to remand the cause for the reason that the evidence does not tend to prove the cause of action alleged, it must, ‘either wholly or in part, find the facts concerning the matter in controversy different from the finding of the trial court,’ and in that event it is required to recite, in its final order, judgment or decree, the facts as found. (Practice act, sec. 88; 2 Starr & Cur. Stat. p. 1842.) The facts, when thus recited, are not the subject of controversy in this court, but we may inquire whether the law has been correctly applied to them, and therefore determine whether the refusal to remand was proper.”
The question was again under discussion in Siddall v. Jansen, 143 Ill. 537, where the authorities were reviewed, Thomas v. Fame Ins. Co. 108 Ill. 91, overruled, and the doctrine of Jones v. Fortune re-aifirmed. In Homersky v. Winkle Terra Cotta Co. 178 Ill. 562, the case in 128 Ill. was quoted from and approved. In Weeks v. Chicago and Northwestern Railway Co. 198 Ill. 551, it was said that the judgment of the Appellate Court is made final and conclusive only “as to all matters of fact in controversy in such cause,” and that if there are no matters of fact in controversy in the case, then the Appellate Court is without power to make a finding of fact differing from the finding of fact made by the court of original jurisdiction. It was there further said, however, that matters of fact included all inferences of fact deducible from the facts proved, and the conclusion reached was, that although there be no controversy over the facts proved, admitted or agreed upon, yet if different conclusions of ultimate fact may be drawn or inferred' from the evidence, then the Appellate Court may incorporate in its judgment a finding of facts differing from that of the trial court, and such finding will not be subject to review in this court.
Plaintiff in error relies principally upon the case of Treat v. Merchants’ Life Ass. 198 Ill. 431, where it was held that the question presented to the Appellate Court by an assignment of error challenging the action of the superior court in holding, upon motion of the plaintiffs in the case, that the evidence offered by the defendant presented no defense to the action, raised only a question of law, and that the Appellate 'Court, therefore, had no power to make a finding of fact. That case was very evidently one in which there could be no controversy as to the ultimate facts established by defendant’s evidence. The only question was whether, under the law, such ultimate facts constituted a defense, and, as we shall hereafter see, that case is therefore distinguishable from the one at bar.
No warning of any character was given to Manthei by defendant in error before the cars were started, nor was any warning given to him after the cars were started, and the plank began moving. The foreman of the switching crew was in a position where he could see the board lying beside the track when he gave the signal to move the train. After the board began moving no effort was made to stop the train. Whether or not the Belt Railway Company was guilty of negligence charged in the declaration was to be inferred from these facts. The nisi prius court from these facts deduced the conclusion that the railway company was guilty, of the negligence charged, while the Appellate Court drew a different inference from the same facts, as it had authority to do under the law. The ultimate fact here was not directly proven but could only be inferred from other facts proven. Such finding of fact we are without power to review. Jones v. Chicago, Rock Island and Pacific Railway Co. 231 Ill. 302; Hecker v. Illinois Central Railroad Co. id. 574.
There is no basis for the contention that the Appellate Court placed an erroneous construction upon the declaration. The judgment of the Appellate Court will be affirmed.
Judgment affirmed.