delivered the opinion of the Court:
In giving the seventh instruction for plaintiff below, there was material error. The jury were instructed that, if they found plaintiff was injured by one of defendant’s engines at a street-crossing in the city of Peoria, and at the time there was no bell ringing or whistle sounding upon such engine, they should find for the plaintiff, unless he, by his own negligence, materially contributed to the injury.
This instruction declares a legal liability upon the railroad company for an injury to a person, simply on the ground that the injury was caused at a street-crossing in a city, by an engine of the company on which no bell was being rung or whistle sounded at the time, irrespective of the question whether the failure to ring the bell or sound the whistle in any manner caused the injury or not. There is no such rule of the common law, and the statute, after prescribing the duty of ringing the bell or sounding the whistle, under such eircumstances, declares: “And the corporation owning the railroad shall be liable to any party injured for all damages sustained by reason of such neglect.” Laws 1869, p. 308.
The instruction should have embraced ' the proposition whether plaintiff was injured by reason of the neglect to ring the bell or sound the whistle, and without it was fatally defective.
The instruction asked for appellant, and refused, designated as the twelfth, was properly refused, because it does not submit the question to the jury to find that the signal given was of such a character that a man of ordinary intelligence, seeing it, would know that it indicated a warning that the train was approaching, or that plaintiff understood the signal to be a warning of an approaching train.
We are of opinion that the evidence offered to be given by witness Thomas, of the manner in which the several railroad companies having tracks in the vicinity of the place of the injury, were accustomed to use such tracks, was admissible. If the facts were brought home to the knowledge of plaintiff, the evidence would be directly pertinent to the question of negligence on his part. This purpose was assigned by counsel as the ground of its admissibility. It was legitimate, and the court erred in excluding the offer.
The judgment of the court below will be reversed and the cause remanded.
Judgment reversed.