delivered the opinion of the Court:
In this case, appellee, as administratrix of her 'intestate, a boy some six years old, recovered judgment in the Cook circuit court for $1500, damages, against appellant, for wrongfully causing the death of such intestate, through the negligence of its servants. The judgment was affirmed in the Appellate Court for the First District.
Two grounds are urged in this cqurt for the reversal of the judgment. One is, the refusal of the trial court, when the plaintiff below rested her case in chief, to instruct the jury to find for the defendant, because there was no evidence of negligence on the part of defendant, and no evidence of due care on the part of the plaintiff. We can not accede to either of the propositions involved in the motion that was made by appellant. It is only when the conclusion of negligence necessarily results from the statement of fact, that the court can be called upon to say to the jury that a fact establishes negligence, as a matter of law. (Chicago and Eastern Illinois Railroad Co. v. O’Connor, 119 Ill. 586.) The fact that a person passing over a sidewalk crossing in a city, steps onto the track of a street railroad, whether the cars accustomed-to run thereon are horse cars or grip cars, without first stopping and looking to see whether a car is approaching, is not, as matter of law, and without any regard to surrounding circumstances, negligence and a want of ordinary care. The question of negligence and a want of ordinary care is, in such cases, a question of'fact for the determination of the jury, in the light of the attendant circumstances.
Where street car tracks are in close proximity, to run a car or train of ears in one direction, at rapid speed and without signal or warning, over a sidewalk crossing, while a car or train bound in the opposite direction is discharging passengers at such crossing, and where, as in this case, the view of the approaching train is obstructed by the standing car from which the person injured has just alighted, is surely conduct which fairly tends to prove culpable negligence, even though the rate of speed of such approaching train does not exceed that which is permitted by ordinance, and it can not be said, as matter of law, that such conduct is not negligence. From the testimony for appellee contained in this record, we think it was not manifest error to deny the motion of appellant to take the case from the jury.
It is urged that the first instruction for appellee was erroneous, in that it contained no reference to the element of contributory negligence on the part of the mother of the deceased child. The theory of the instruction was, that the child himself was in the exercise of ordinary and reasonable care at the time he was killed. Several of the instructions given at the instance of appellant were predicated upon the same theory of fact that lies at the foundation of this instruction in question,—i. e., that the deceased was capable of exercising ordinary care and prudence,—and said instructions stated fully the duty thereby incumbent upon deceased in that regard. The jury, in returning a verdict for appellee, under the instructions of the court, must necessarily have found that the child was in the exercise of ordinary care and prudence. In such state of the case,—and it is the case stated hypothetically in the instruction,—it would be a matter of no moment, in respect to the liability of appellant, what degree of care and vigilance the mother was exercising for the safety of her child, since the child himself was using all the care which the occasion required. In a case where the conduct of an infant would not he negligence in an adult, the question of imputable negligence is immaterial. (Cummings v. Brooklyn City Ry. Co. 6 Cent. Rep. 394.) The view, the minor did not use, and was incapable of exercising, care, by reason of his tender years and immature judgment, and that in the event the jury so found, the doctrine of imputable negligence, on account of the neglect of the mother, was applicable to the case, was fully given to the jury in instructions tendered by appellant. Appellee made no claim, at the trial, that the age of the deceased would excuse in him conduct which would be negligence in a person of mature judgment; and as the case went to the jury upon the instructions, the issue was conceded to appellant, without the jury found, from the evidence, that the child was in the exercise of ordinary care at the time he was killed. We think the instruction complained of was not erroneous.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
Mr. Justice Bailey, having heard this case in the Appellate Court, took no part in its decision here.