delivered the opinion of the court:
The Elgin, Joliet and Eastern railroad crosses a public highway known as East Cass street, in the town of Joliet, near the city limits of the city of Joliet. The highway runs somewhat north of east and the railroad slightly west of north, so that they intersect at right angles. At or soon after six o’clock in the evening of September 22, 1904, the appellee, Michael Lawlor, was driving east on said highway with a horse and old open buggy, and a man named Frank Hurley was with him. There were three tracks at that place, and as appellee came toward the crossing an engine of the Michigan Central Railroad Company was pushing a train of fifteen box-cars of that road from the south on the east track, to deliver them at the yards of the appellant north of the crossing. The train crew were employees of the Michigan Central Railroad Company, and two of them were standing on the north end of the first car approaching the crossing. The west rail of the west track was about forty feet west of the middle of the east track, and after coming to the west track there was no obstruction to the view of the approaching train. The appellee drove across the west track and middle track, and as he came upon the east track the buggy was struck by the train. Appellee was thrown out and sustained a number of bruises and the buggy was shattered. This suit was brought by him in the circuit court of Will county tO' recover damages for his injuries, and he charged appellant with negligence of the train crew in handling and driving the engine and cars and with neglect to ring a bell or blow a whistle, as required by the statute. Appellant’s plea was the general issue, and upon a trial there was a verdict finding appellant guilty and assessing appellee’s damages at $1650. The Appellate Court for the Second District affirmed the judgment.
It is first contended that the circuit court erred in refusing to direct a verdict of not guilty at the request of the defendant. The question presented by that request was one of law, and we are of the opinion that the court did not err in refusing to declare, ás a matter of law, that there was no evidence fairly tending to prove a neglect of the statutory duty charged in the declaration or that the evidence proved plaintiff guilty of negligence as a conclusion of law. There was evidence for the defendant that plaintiff was intoxicated; that he was whipping his horse a block and a half from the crossing; that he dropped his whip in the road and went upon the crossing at a run or gallop or very fast trot; that he did not look either way or notice the approaching train, and that, after the accident he made a statement showing that he could not hold the horse. This evidence was contradicted by testimony for the plaintiff that he had not drank enough to affect him; that he drove upon the crossing at a moderate gait; that the day was cloudy and it was getting dusk; that plaintiff heard engines up north and looked toward the north; that it did not occur to him that a train might be coming from the south, but that he looked in that direction also. There was also evidence tending to prove that no statutory signal was given, although the fact was disputed. Hurley said that he did not look for trains or pay any attention to them but looked on his own side, which was the north.
It is insisted that it would have been physically impossible for the plaintiff to look toward the approaching train and not see it. Whether that is so or not depends to some extent upon the degree of light at the time. In any event, a failure to look and listen cannot be said to be negligence as a matter of law, since there may be circumstances excusing such failure; (Chicago and Northwestern Railway Co. v. Dnnleavy, 129 Ill. 132; Chicago and Northwestern Railway Co. v. Hansen, 166 id. 623;) and it is not denied that there may have been engines north of the crossing which attracted plaintiff’s attention.
Much complaint is made of the conduct and remarks of the trial court in the presence of the jury. The attention of the witness Frank Hurley, testifying for the plaintiff, had been called to a conversation with Seneca Hammond, and he was asked if he did not say to Hammond, “We saw the train coming up the track and heard the train whistle but couldn’t stop the horse in time,” and also that the plaintiff whipped the horse before he got on the track and that was why he could not stop him. Hammond being called as a witness for defendant testified that he asked Hurley how it happened, and Hurley said they were driving so fast they could not stop. He was then asked what, if anything, Hurley said to him. On objection to the question the court said: “No, I don’t think we can go into that; and another question is whether it should go in as a part of the res gestee.” The court was right in sustaining the objection, for the reason that defendant had no right to call for the conversation by asking what Hurley said to the witness. The only right of the defendant was to ask Hammond whether the statements repeated to Hurley were made, and the question would have been answered by yes or no; but the reason given by the court was not a good one and what was said about the res gestes was improper. After the ruling, however, the question was repeated and answered, the witness stating everything that Hurley said, and defendant had no cause of complaint. After the witness had given the conversation counsel for the defendant asked this question: “Give the conversation between you and Mr. Hurley,” and the court said, “He has.” There was no occasion to repeat the conversation, and no exception was taken to what the court said which is now complained of. Hammond made a statement in which he got the order of events confused, and the court asked him if he was certain about it, and stated that it did not seem credible. It is not proper for a court to say anything to affect the credibility of a witness with the jury, but the court intended nothing of the kind in this case, and the effect was not to discredit the witness, who, upon reflection, found that he was mistaken and corrected his statement. A doctor called by the plaintiff testified that the injuries of plaintiff were permanent and that they were liable to lead to tuberculosis. On cross-examination it appeared that the opinion of the doctor was based, in part at least, upon his knowledge of the fact that brothers and sisters of the plaintiff had died from tuberculosis, and counsel for defendant thereupon moved to strike out all the testimony of the doctor that the injuries were permanent and that plaintiff would have tuberculosis. The court overruled the objection because it was too broad and included testimony that was proper, but the court then ruled out all the testimony of the- witness concerning tuberculosis. There are some other objections to the conduct and remarks of the court which are of so little importance as not to require particular mention. There was nothing in either that was prejudicial to the defendant.
It is urged that the second, third, fourth, fifth and sixth instructions given at the request of the plaintiff were erroneous and that the court erred in giving them. The second instruction was as follows:
“You are instructed that railway trains approaching a public crossing in a thickly settled district are required to use a higher degree of care than they are required to observe in approaching public highways in a sparsely settled district.”
Aside from the requirements of the statute, persons handling trains approaching crossings are required to use reasonable care, and what is such degree of care is a question of fact, depending upon the local conditions. One of the numerous conditions which would be material for the consideration of the jury would be the extent to which the crossing is used. The question whether a crossing is much used by the public is proper to be considered, and in the case of Overtoom v. Chicago and Eastern Illinois Railroad Co. 181 Ill. 323, which is cited in support of the instruction, the fact was regarded as material. In that case the trial court refused to allow the plaintiff to prove that the crossing was in a thickly settled and populous part of Chicago and that the street' was constantly traveled over by large numbers of people. Even if the instruction had contained a proposition of law, it was abstract in form, and it was not the province of the jury to compare the duties of the defendant at this crossing with its duties at some other crossing. It did not undertake to inform the jury what precautions should be taken at either kind of crossing or what the defendant ought to have done, and while the court ought to have refused it, we do not see how it could have harmed the defendant.
The third instruction was as follows:
“The jury are instructed that the preponderance of evidence in a case is not, necessarily, alone determined by the number of witnesses testifying to a particular fact or state of facts. In determining upon which side the preponderance of evidence is, the jury should take into consideration the opportunities of the several witnesses for seeing or knowing the things about which they testify; their conduct and demeanor while testifying; their interest or lack of interest, if any, in the result of the suit; the probability or improbability of the truth of their several statements, in view of all the other evidence, facts and circumstances proved in the trial, and from all the evidence, facts and circumstances in evidence determine on which side is the weight or preponderance of the evidence.”
The objection to the instruction is, that it told the jury what they were to consider in determining on which side the preponderance lay but wholly omitted the number of witnesses, which is one of the things the jury were bound to consider. The element of numbers should be considered by them with all the other things which are mentioned in the instruction. (Gage v. Eddy, 179 Ill. 492; Chicago Union Traction Co. v. Hampe, 228 id. 346.) The instruction did not tell the jury to disregard numbers, but it omitted to enumerate that element among other things to be taken into account. In defense of the instruction it is said that this court has approved the same instruction in other cases. In the case of Meyer v. Mead, 83 Ill. 19, an instruction was given stating that the preponderance of the evidence in a case is not alone determined by the number of witnesses testifying to any fact or facts, but in determining where the preponderance is the jury must also take into consideration the opportunities or occasion of the witnesses seeing, knowing or remembering what they testified to or about, and other things mentioned in the instruction. The objection was that the jury were told they need only consider the number of witnesses and also other matters pertaining to the witnesses, whereas the facts and circumstances in the case must be considered as well as the number and credibility of the witnesses. That instruction advised the jury to consider the number of the witnesses and also the other things contained in it. The question here involved was not considered and could not have been. In Chicago and Alton Railroad Co. v. Fisher, 141 Ill. 614, the instruction was as follows: “That the preponderance of evidence may not depend entirely upon the number of witnesses testifying on either side of the case.” It was urged that the instruction practically told the jury that the greater number of witnesses is no better than the lesser number, but the court said that the instruction impliedly conceded that where other things were equal the greater number must control. In that case there was no recital of things to be considered and an omission of the important element of numbers. In West Chicago Street Railroad Co. v. Lieserowitz, 197 Ill. 607, an instruction which was in substance the same as the one given in this case was objected to as telling the jury to disregard numbers in determining upon the preponderance of the evidence. It was said that the correctness of the instruction was sustained by the two cases just referred to, which, perhaps, was only correct in a limited sense; but it was said that if the instruction was defective it was cured by instruction No. 18 given for the appellant in that case, which told the jury that the number of credible and disinterested witnesses testifying on the one side or the other of a disputed point is a proper element for the jury to consider in determining where lies the preponderance of the evidence. The two instructions taken together correctly stated the law. We do not think it can be said that this court has given its unqualified approval to this instruction, or that it might not be misleading in a case where the question of numbers was important and no other instruction was given supplementing it. In this case we would not feel justified in reversing the judgment on account of it.
The fourth instruction correctly stated the law as to the degree of care required of the plaintiff, but it was prefaced by the statement that the law did not require of him the exercise of an extraordinary degree of care. The plaintiff was entitled to an instruction informing the jury of the degree of care required of him by the law, and the proper office of an instruction was completely filled by the latter part of the instruction in question. Generally, an enumeration of things which the law does not require, and which is in the nature of argument, is at least of doubtful propriety. It is true, however, that the law did not require of the plaintiff the exercise of an extraordinary degree of care, and the statement is not ground for reversing the judgment.
The fifth and sixth instructions are objected to as assuming facts, or telling the jury, by inference, that certain facts existed. They were accurate statements of the law, and we find in them no assumption of any matter of fact.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.