delivered the opinion of the Court;
The first error complained of is the decision of the court admitting the testimony of the witness McClintock, who testified to the height of ordinary railroad bridges, and the decision of the court in giving plaintiff’s instruction No. 3, as follows:
“The court instructs you, that if you believe, from the iveight of the evidence in this case, that William S. Eeed, deceased, was riding up on top of a car in the train of the defendant, and was at the time in the discharge of his duty as brakeman for the defendant, and was not acting in violation of any rule of the defendant, and was in a proper position and place on the car for the performance of his duties, and was in the exercise of due care, and he was killed by coming in contact with the top of a bridge of the defendant railroad company while passing under it, and if the roof of such bridge was lower than the usual height of such bridges, and that he, William S. Eeed, by reasonable care and foresight, could not have known it was dangerous to attempt to pass under, then the defendant railroad company is liable for damages to the administrator of said deceased for such killing.”
In the construction of covered bridges the railroad company was required to build them of sufficient height, so that persons •employed by it as brakemen, who are required to" go on top of freight cars in the discharge of their duty, while passing over a bridge may pass through and under the roof of the bridge without danger to their personal safety, as was held in Chicago and Alton Railroad Co. v. Johnson, 116 Ill. 206. But the mere fact that this bridge was lower than ordinary railroad bridges would not establish the fact that the bridge, as constructed, was dangerous, and hence the evidence was inadmissible. The evidence might tend to prove that the railroad company was negligent in failing to follow the plan usually adopted by other railroads, but it would even be slight evidence of that fact. As to the instruction, it was, in our opinion, erroneous. Under the instruction, if the roof of the bridge was lower than the usual height of such bridges, then the railroad company was liable. The real question for the jury was, whether the bridge, as constructed, was safe, and not dangerous. " It might be lower than other bridges and at the same time be safe. If the bridge, as constructed, was of .a sufficient height so that brakemen on the top of the car might cross over the bridge in safety, then it made no differ■ence whether it was higher or lower than other bridges.
But while we regard the instruction as erroneous, the law was so clearly and pointedly stated in defendant’s first instruction that we do not think the jury was misled, and hence the error should not work a reversal of the judgment. The ■defendant’s first instruction was as follows :
“The court instructs the jury, that the defendant company, under the laws of Illinois, is not required to build its bridges of such height that its brakemen can stand on them (on the ■cars) and pass through and under them with safety. The law fixes no exact height or standard, but only requires that such bridges shall be of such height that the employes can perform .their duties with reasonable safety to themselves.”
Under this instruction the exact height was not a material consideration, but the material consideration was, whether the bridge was of sufficient height that brakemen could discharge ■their duties with reasonable safety.
The court refused the following instruction, and the ruling .is relied upon as error:
“The court instructs the jury, that by law the defendant was required to baúl over its road the high car in question, if it could be with safety taken over its road. The fact that it was higher than defendant’s own cars would not relieve it .from its duty in this respect. ”
Whether the defendant owed a duty to some other railroad ■company or some individual in reference to hauling this car over its road, was not a matter material to any issue involved in this case, and upon that ground, if upon no other, the instruction was properly refused.
As to instruction No. 5, its substance was embraced in No. 1, and there was no necessity for repeating the same matter in .another instruction.
The court' modified defendant’s sixth instruction by inserting the following: “And that the top of said bridge and brace was of a reasonably safe height above the track of the road.” We perceive no substantial objection to the modification. The same principle was announced in other instructions, and it ■could not mislead the jury by being incorporated in this one.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
Mr. Justice" Phillips, having heard this cause in the Appellate Court, took no part in the decision here.