delivered the opinion of the court:
The first error assigned on this record is the action of the trial court in refusing to rule the appellee to give security for costs, and in default thereof to dismiss the case on the ground the plaintiff was a non-resident. The appellant, after it had been served with process, moved the court to rule the appellee to give security for costs, and upon a failure to comply with such rule asked that the case might be dismissed, and filed the affidavit of one of its attorneys, in support of the motion, that the appellee was a non-resident of the State of Illinois. The appellee filed his affidavit in opposition to the motion, stating that he was a resident of the State of Illinois, and that his residence was in the city of Chicago, in Cook county,' whereupon the court overruled the motion and the appellant thereafter pleaded to the merits. We are unable to see wherein the court committed error in overruling appellant’s motion. The affidavits, as far as we know, were entitled to equal credit, and as it did not appear, from the showing, made in support of the motion, that the appellee was a non-resident of the State of Illinois, the court could not do otherwise than overrule the motion.
It is urged, however, that while the appellee was upon the witness stand it clearly appeared from his evidence, given on cross-examination, that he was not a bona fide resident of this State. The motion was not based upon the cross-examination of appellee but had been overruled before such testimony was elicited, and the motion was not renewed by the appellant after the appellee had testified in the case as a witness. The ruling of the court upon the motion was correct when it was made, and the court was not asked to change its ruling after the appellee had testified as a witness in the case.
It is next assigned as error that the court erred in overruling its motion, made at the close of the appellee’s evidence and again at the close of all the evidence, to take the case from the jury. The evidence was conflicting as to whether or not the statutory signals of the ringing of a bell and the sounding of a whistle were given by the appellant as its train approached the highway. crossing at the time appellee was injured. In such state of the record the judgment of the Appellate Court is binding upon this court, and in considering the case this court must assume that the bell was not rung or the whistle sounded as the train approached the highway crossing.
It is, however, urged, that the evidence fails to show that the failure to ring the bell or sound the whistle was the proximate cause of the appellee’s injury, and it is contended that appellee was guilty of such contributory negligence in approaching the railroad crossing, sitting with his face towards the rear of the wagon and without looking or listening for an approaching train, that he cannot recover. This court has repeatedly held that the questions of proximate cause and contributory negligence are questions of fact and not of law, and that where there is evidence in the record fairly tending to support the findings of the jury upon those questions, and the findings of the jury have been affirmed by the Appellate Court, the judgment of that court upon those questions ’is conclusive upon this court. In this case we think it clear there is evidence in the record which fairly justified the jury in finding that by reason of'the failure of appellant to ring a bell or sound a whistle as its train approached the crossing and by reason of the obstacles which intervened between the highway and the approaching train, and the further fact that Kingsley was well acquainted with the time when regular trains ran upon appellant’s railroad, and that the train which injured appellee was a special, appellee was not guilty of such contributory negligence as would defeat a recovery on his part, and that when appellee discovered himself in peril he did what a reasonably prudent man might have done under the same circumstances to extricate himself from such perilous situation. True, the appellee was riding with his face towards the rear of the wagon. Kingsley, however, who was familiar with the highway and was driving the team, was facing the crossing and Burns was facing the direction from which the train approached the crossing, and Burns gave warning of the approaching train at as early a period of time as the appellee could reasonably have seen the train had he been facing the crossing. In any event, we think the evidence in the record was of such a character that this court cannot say, as a matter of law, that the negligence of the appellant was not the proximate cause of the injury or that the appellee’s right to recover was defeated by his own negligence.
The cases of Chicago and Alton Railroad Co. v. Corson, 198 Ill. 98, Chicago and Northwestern Railway Co. v. Hansen, 166 id. 623, Chicago and Alton Railroad Co. v. Pearson, 184 id. 386, and Chicago and Alton Railroad Co. v. Lewandowski, 190 id. 301, which were railroad crossing cases, we think clearly show that the trial court, in view of the facts disclosed by this record, did not err in submitting the case to the jury.
It is next assigned as error that fhe court erred in permitting Kingsley to state, when upon the stand as a witness, that he considered that he was in a perilous situation at the time'he whipped up his horses and the appellee attempted to get out of the wagon after they discovered the approaching train, as it is said the question called only for the conclusion of the witness. It, perhaps, may be true that the statement of the witness that he considered that he was in a dangerous situation was, in a sense, the conclusion of the witness. He had, however, before the question was asked, stated to the jury all the facts in his knowledge surrounding the accident, and if it were conceded the question was objectionable as. calling for the conclusion of the witness, we think the answer worked no harm to appellant and should not be held to constitute reversible error.
It is finally contended that the court erred in instructing the jury. We have read the instructions given for and on behalf of both parties, and those modified and 'given, and those refused offered by the appellant, and have been unable to discover any reversible error committed by the court in the giving, modifying or refusing of instructions. The criticism made upon appellee’s second given instruction that it nowhere includes the element “that the jury must find' that the failure to give the signals, if proven, was the cause of the injury,” we think without force, as that instruction was not given with the view to specify all the elements which the appellee must prove to entitle him to recover, but was designed to inform the jury if the appellee found himself in a perilous situation by reason of the failure of the appellant to give the statutory signals, and while endeavoring to extricate himself from the perilous situation in which he found himself he acted as a reasonably prudent man would act under such circumstances, that he might recover; and the criticism on appellee’s given instruction No. 3, that it permits the jury to give the appellee “such an amount as will compensate him for his injuries,” without requiring the jury to take into consideration the evidence in determining such amount, is not justified when the instruction is read and considered as a whole, and when the entire instruction is so read and considered the jury would have readily understood that their verdict must be based upon the evidence. The modifications made to appellant’s given instructions were designed only to bring those modified into harmony with those given, and the refused instructions were covered by other given instructions, or were a specification of facts which the jury were informed amounted to such contributory negligence on the part of the appellee as would defeat a recovery. We are of the opinion the jury were properly and fairly instructed as to the law governing the case.
Finding no reversible error in this record the judgment of the Appellate Court will be affirmed.
Judgment affirmed.