delivered the opinion of the Court:
This was an action brought by Henry Marshall, administrator, against the Pennsylvania Company, to recover damages on account of the death of his son, James Marshall, who was run over by the company’s train of cars on the 27th day of March, 1881, at the corner of Grove and Eighteenth streets, in the city of Chicago.' The plaintiff based his right of recovery on the negligent management of the train by the servants of the defendant, and on a trial before a jury he recovered a judgment for $2000, which, on appeal, was affirmed in the Appellate Court.
On this appeal, the only question relied upon in the argument to reverse the judgment, is the alleged erroneous ruling of the Superior Court on the instructions to the jury. The instructions given for the plaintiff are very brief, and are as follows:
“1. If the jury believe, from the evidence, that the plaintiff has made out his case as laid in his declaration, they must find for the plaintiff.
“2. If the jury find, from the evidence, and under the instructions of the court, that the defendant corporation is guilty of the wrongful act, neglect or default, as charged in the plaintiff’s declaration, and that the same resulted in the death of the deceased, then the plaintiff is entitled to recover such damages as the jury may deem, from the evidence and proof, a fair and just compensation therefor, having reference only to the pecuniary injuries resulting, from said death, to the said plaintiff and next of kin, not exceeding the amount in the declaration. Sorrow or grief for the deceased, or any pain caused to the next of kin by the manner of his death, is not to be considered by the jury, and the pecuniary value of the life of the deceased to the next of kin himself surviving, is all for which damages can be assessed. ”
No fault is found with the first one given, but it is contended that the second is erroneous, on the alleged ground that it ignores entirely the question of comparative negligence. It is apparent from the language of the instruction, that its object was not to lay down any rule of law for the consideration of the jury, upon the doctrine of negligence, but the purpose was to inform the jury as to the measure of damages, in case they arrived at the conclusion, from the evidence, that the plaintiff was entitled to recover, and for this purpose we perceive no objection to the instruction. In the first instruction, the jury were told, that if they believed, from the evidence, that the plaintiff had made out his case as laid in the declaration, they would find for the plaintiff. In the declaration it was expressly averred, that the deceased, when struck by the train, was in the exercise of due care and diligence, and that his death was the result of the carelessness and negligence of the defendant. With the declaration before the jury, and this charge directing their attention to it, it seems manifest that the jury could not be misled, nor could they arrive at the conclusion that the plaintiff might recover if the deceased was guilty of negligence which contributed to his death. When the object intended to be accomplished by each of the two instructions is understood, and their bearing properly considered, we think they are free from objection. Indeed, the second instruction is almost identical with one sustained by this court in the recent case of Chicago, Milwaukee and St. Paul Railway Co. v. Dowd, 115 Ill. 659, which was predicated upon Chicago, Burlington and Quincy Railroad Co. v. Payne, 59 id. 534, where the same question was involved.
Chicago, Burlington and Quincy Railroad Co. v. Harwood, 80 Ill. 88, and Chicago and Northwestern Railway Co. v. Dimick, 96 id. 42, have been cited as authorities to sustain appellant’s position. In the first case cited, an instruction which omitted all care or caution on the part of the person injured, was condemned; but the instruction was not one relating to the measure of damages, as is the case here. In the other case cited, an instruction somewhat similar to the one here involved, was held to be erroneous; but that instruction did not relate solely to the measure of damages. The last part of instruction No. 2, which discloses its real purpose, was entirely omitted from the instruction held to be bad in the Dimick case; and in addition to what has been said, the record in the Dimick case contained other errors sufficient to reverse the judgment. Other cases have been cited, but we do not think they sustain appellant’s position.
The court refused defendant’s eighth instruction, as asked, which, in substance, directed the jury, that if the deceased possessed the faculty of seeing and hearing, and that at the time in question he knowingly attempted to cross the track without looking for the approach of a train, then-he was guilty of negligence, but modified the same, so as to leave it as á question for the jury to determine, whether, under the facts, the deceased was guilty of negligence. It is a familiar rule, that instructions must be based upon the evidence, and the court is not required to give an instruction,, although, as an abstract' proposition of law, it may be correct, unless there is evidence before the jury upon which it may be predicated. There was no evidence in the case that the deceased went upon the track in a reckless or heedless manner, or that he failed to observe that degree of caution that a prudent person would observe to avoid danger. The deceased approached the crossing from the west. A pile of lumber was on his right, which he could not see over. There was a malt house and several freight cars between him and the moving train, and as he stepped from behind the lumber, on the track, he was struck. The train consisted of some twenty freight ears and an engine, the engine being at the rear end of the train, pushing it along. Had the deceased looked, he could not have seen the approaching train ;■ or if he had listened, the ringing of the bell on the engine, a block and a half distant, pushing the train, would have tended to deceive, rather than serve as a warning that he was in danger. Under such circumstances, the instruction, however accurate it may have been, had no proper place before the jury, and it should have been refused by the court.
The court modified defendant’s ninth instruction, and this ruling is relied upon as error. Had no negligence of the. defendant been relied upon except the negligent manner of running the train, the instruction might have been proper as originally prepared; but in the second count of the declaration, the failure to keep a flagman at the crossing was relied upon, and evidence was introduced to establish negligence under this count. The instruction ignored this branch of the case, and hence the propriety of the modification.
In conclusion, after a careful examination of the whole record, we are satisfied that the law involved in the case was fairly given to the jury, and the judgment of the Appellate Court will have to be affirmed.
Judgment affirmed.