Phillips delivered the opinion of the court:
All questions of fact have been conclusively settled by the judgments of the circuit and Appellate Courts. Appellant assigns and urges as error the admission of certain testimony, and the giving of instructions on the part of the plaintiff below and the refusal of instructions on behalf of the defendant.
Upon the trial of the cause the defendant desired to show by the plaintiff that just before the accident he had remonstrated with O’Brien, the .driver, as to the danger of crossing the track at that particular time, and assigns as error the court refused to permit it to do so. An examination of the record discloses that there was no error in this respect. The witness, on being interrogated regarding this fact, was asked:
Q. “Well, you didn’t tell him what to do and what not to do, did you?
A. “No, sir; I told him nothing.
Q. “You didn’t find any fault with him for what he did?
A. “No, sir.”
The trial court, at the request of the ■ plaintiff, instructed the jury that the deposition of one James O’Brien should be considered by the jury with all the other evidence in the case, and be given such weight as they might think it entitled to in connection with the circumstances and the evidence in the case. It is urged that this instruction singles out and gives undue prominence to the evidence of O’Brien. The object of the instruction was to inform the jury that the deposition, under the law, should be considered in the same manner as if the witness had himself been present and testified in the case. It is apparent the jury were not misled or deceived by the instruction. It did not call attention to any fact testified to, but to the fact that a deposition was to be considered in the same way as if the witness had testified in open court.
Error is assigned by appellant that the court refused to give to the jury the following instruction asked by defendant:
“The jury are instructed that while the law permits the plaintiff in the case to testify in his own behalf, nevertheless the jury have the right, in weighing his evidence, to determine how much credence is to be given to it, and to take into consideration that he is the plaintiff and interested in the result of the suit.”
No instruction was given on this question and no objection exists to the instruction. There was a sharp conflict in the evidence as to who was guilty of negligence,—the plaintiff and the driver of the wagon or the servants of the defendant. The evidence for the plaintiff as to the negligence of defendant was shown by his testimony and that of O’Brien. The testimony of the grip-man and of four or five passengers on the car which struck the wagon was in conflict with the testimony for plaintiff. We have held that where there is such conflict it is important that the jury should be correctly instructed. The refusal of this instruction was error.
The judgment is reversed and the cause is remanded.
Reversed and remanded.