delivered the opinion of the Court:
One ground of error assigned on the record in this case, is the giving of the following instruction to the jury, to wit:
“The court instructs the jury for the plaintiff, that omission to ring a bell or sound a whistle at a road crossing is prima facie evidence of negligence, and if the jury believe, from the evidence, that the cow of the plaintiff strayed and got upon the track of the defendant at or near a road crossing at Yatesville, in Morgan county, and that while on said track the train of the plaintiff approached and omitted to ring the bell or whistle the whistle of the locomotive at eighty rods from said crossing, and failed to keep the bell ringing or the whistle whistling until the crossing was reached, and that the cow of plaintiff was killed by such train, then the jury will find for the plaintiff,'and assess his damages at the value of said cow, as shown by the evidence, unless the defendant has shown by testimony that the failure so to ring the bell or whistle the whistle, could not have averted the killing of the cow; and the burden of proof is upon defendant to show such fact.”
This instruction was erroneous, in that it instructed the jury as to the weight of evidence. The statute, after prescribing a certain penalty for the failure to ring a bell or sound a whistle for the distance specified from the crossing of a public highway or street, provides, “and the corporation owning the railroad shall be liable to any person injured for all damages sustained by reason of such neglect.” The omission to ring the bell or sound the whistle for the required distance, would render the company liable for the penalty, but would not subject it to liability in an action for damages, unless the damages complained of were sustained by reason' of such neglect. Galena and Ohio Union Railroad Co. v. Loomis, 13 Ill. 548.
The plaintiff’s testimony showed that the whistle ivas not sounded nor the bell rung for the full distance of eighty rods from the crossing, but that the whistle began to be sounded at a point only thirty or forty rods distant from the crossing; that when the whistle sounded the cow ran off the track and down by the side of it about one hundred feet, and then ran upon the track ahead of the train and was killed. The defendant introduced no testimony whatever. Whether the injury to the animal was caused by the failure to sound the whistle or ring the bell for the entire distance of eighty rods from the crossing, was a question of fact for the jury, and in no respect a question of law for the court to pass upon, and the court should not have pronounced upon the effect of the plaintiff’s testimony upon the point, as it did, by virtually telling the jury, by this instruction, that the evidence in this respect was sufficient, and entitled the plaintiff, to recover, unless the defendant had shown by testimony that the failure to ring the bell or sound the whistle, for the entire distance of eighty rods from the crossing, could not have caused the killing of the cow, and that the burden of proof was on the defendant to show such fact. For the same reason plaintiff’s third instruction should not have been given, and the defendant’s first refused instruction should have been given.
The judgment is reversed and the cause remanded.
Judgment reversed.