delivered the opinion of the court:
The principal contention of appellants, and the one to which the greater portion of their brief and argument is devoted, is that the court erred in refusing to direct a verdiet on the ground that the evidence did not tend to show that deceased was in the exercise of due care for his safety at the time of the accident, and also that it affirmatively appears from the evidence that deceased was guilty of contributory negligence.
The evidence tends to show that on account of structures west of Front street and near the railroad track the view of the track by one approaching the crossing from the south was obstructed, and that not until within twenty-seven feet of the track could a view of it to the west be had for a distance of eight hundred feet. Deceased hitched his team to his farm wagon, in the bed of which he had a partial load of lumber, at a blacksmith shop about two hundred and fifty feet south of the crossing and started to drive north over said crossing. The weather was cold, the wind was blowing, the ground frozen and somewhat rough, and the wagon and lumber therein, which projected beyond the end of the wagon bed a few feet, necessarily made some noise. It is not clear from the evidence whether 'the deceased was standing on his feet in the wagon from the time he left the blacksmith shop or whether he was sitting on something. He wore a plush cap with rolls at the side that could be turned down over the ears. One witness testified that when deceased hitched his team to the wagon at the blacksmith shop the cap was down around his ears pretty well; another, a woman who saw deceased approaching the crossing and saw the accident, testified the cap was pulled down over his ears; a man who was with her at the time testified he thought the cap was pulled down over his ears, and another witness testified to the same thing, but his testimony was to some extent based upon the fact deceased usually wore his cap that way. Deceased was slightly deaf. From the time he left the blacksmith shop until he reached the railroad crossing he did not stop, and no one testified to his doing anything before he reached the crossing to ascertain if a train was approaching. There was testimony that he was looking north as he approached the railroad track. There was testimony that the bell on the engine was ringing from the time the train left Mattoon until it stopped in Kansas after the accident, and a number of witnesses testified to the whistle being sounded fifteen hundred feet west of Front street crossing, also again at the C., H. & D. crossing, three hundred feet west of the depot, before the danger signals were given after the engineer had discovered the deceased driving upon the track. There was other testimony of witnesses in a position to have heard them, if they had been given, that they did not hear them until the danger whistles were sounded, and that at that time the engine was between the depot and the crossing. It is not denied the train was being run at a rate of speed greatly in excess of the rate permitted by the ordinances of the village. A number of witnesses testified that it was running at from fifty to sixty miles per hour. The telegraph operator at the village of Kansas testified that it was his duty to note the time of-trains, and that the train that caused the accident ran from Ashmore, four and one-half miles west of Kansas, to the village of Kansas in five minutes, which would make the rate of speed about fifty-four miles per hour. There was a warning bell on a post north of the railroad track at the crossing which was operated by electricity from the telegraph office, and a number of witnesses testified to hearing the bell ring just before the accident. These bells were rung by the telegraph operator by push buttons. There were two of these buttons, and each of them rang a bell at two crossings. The operator testified he would push one of the buttons for about five seconds and then the other one for about the same time, so that each bell was not rung constantly. One witness testified he heard the bell at Front street crossing ring a little while and then stop. The north rail of the switch track was eight feet from the south rail of the main track. According to estimates of the witnesses, deceased himself was from ten to fifteen feet south of the switch track, which would place him very neár the line where be could first get a view of the track to the west when the danger signals were given by the engineer of the train. As deceased drove upon the track he was about forty feet ahead of a man and woman walking along- the sidewalk toward the crossing, and they having heard the approaching train, the man called to deceased just before the danger signals were given. He testified he did not know "whether he called loud or not; that he did not call loud enough for deceased to hear him, while the woman with him testified he hallooed loud. The deceased apparentfy did not hear him, but immediately after the call the danger signals were given. The horses were going upon the track when the call was made. About the time the danger signals were given, which the testimony tends to show was when the train was between four and five hundred feet west "of the crossing, deceased was observed to apparently try to urge his horses across the track and then immediately pull them back. The horses appeared to be frightened at the time. At the rate of speed the train was going it would take it about nineteen seconds to reach the crossing from the time it was said to have whistled, fifteen hundred feet west of the crossing. It would run from the depot to the crossing in about ten seconds, and from Paxton’s grain office, where the evidence tends to show the danger whistles were sounded, to the crossing in about five seconds.. There is some evidence that when the deceased passed the line of obstructions that prevented his seeing the track he did look. At that time the train was within a few hundred feet of him, his horses became frightened and he found himself suddenly in a perilous position. He could not then be expected to exercise the degree of care and caution a prudent man would exercise under ordinary circumstances. But appellants contend that by the exercise of reasonable care he could have discovered the approaching train before reaching a position of peril. There is evidence tending to show he could not have seen the train before reaching a point within twenty-seven feet of the track. Whether he could have heard it before that time, and whether, if he could have done so, in driving on the track without stopping he failed to exercise reasonable care under all the circumstances, was a question of fact. It was incumbent upon appellee, as contended by appellants, to aver and prove that deceased was in the exercise of due care under all the circumstances, and unless this is proven there cannot be a recovery. Jorgenson v. Johnson Chair Co. 169 Ill. 429.
This court has repeatedly held that a traveler approaching a railroad crossing is required to use such care as a person of ordinary prudence would exercise under the same circumstances; and this ordinarily demands the use of the faculties of sight and hearing to discover whether a train is approaching or not, but it cannot be said, as a matter of law, that the failure to look or listen under all circumstances will bar a recovery. It is usually a question of fact for the jury to determine, in view of all the surrounding circumstances, whether failure to look and listen constitutes negligence or lack of due care. (Chicago and Alton Railroad Co. v. Pearson, 184 Ill. 386; Pennsylvania Co. v. Frana, 112 id. 398; Terre Haute and Indianapolis Railroad Co. v. Voelker, 129 id. 540; Chicago and Northwestern Railway Co. v. Hansen, 166 id. 623; Chicago and Alton Railroad Co. v. Adler, 129 id. 335; Chicago and Alton Railroad Co. v. Lewandowski, 190 id. 301; Chicago Junction Railway Co. v. McGrath, 203 id. 511; Elgin, Joliet and Eastern Railway Co. v. Lawlor, 229 id. 621.) In Chicago, St. Louis and Pittsburg Railroad Co. v. Hutchinson, 120 Ill. 587, it was held that the degree of care required cannot be formulated into a particular rule of conduct, for the reason that the conduct of ordinarily cautious and prudent men will vary with varying circumstances. In Partlow v. Illinois Central Railroad Co. 150 Ill. 321, the court said (p. 327) : “It has often been said by this and other courts that it is the duty of a person approaching a railroad crossing to look and listen before attempting to cross, and that a person failing to observe that precaution is guilty of negligence; but where the statement has been made, the court, as a general rule, was discussing a question of fact, and in such cases the statement may be regarded as accurate. But the court cannot say, as a matter of law, that the failure to look and listen is negligence.. These facts are proper for the consideration of the jury in determining whether a person has been negligent, but it cannot be said, as a matter of law, that the failure to observe such acts is negligence.”
In Chicago and Northwestern Railway Co. v. Dunleavy, 129 Ill. 132, the jury found, in answer to a special interrogatory, that the deceased was in the exercise of reasonable care for his safety at the time he was killed. In answer to special interrogatories whether deceased looked or whether he listened to ascertain if a train was approaching, the jury answered, “Don’t know.” To the interrogatory, “If the deceased had looked before the accident could he have discovered the approach of the train in time to have avoided the accident?” the jury answered, “Yes;” and to the interrogatory, “If deceased had listened before the approach of the train could he have discovered the approach of the train in time to have avoided the accident?” the jury answered, “If he had concentrated his attention in that particular direction, yes.” It was contended by the railroad company in that case that the court erred in not directing a verdict and also that the special findings were inconsistent with the general verdict. The court said (p. 148) : “The question then presents itself whether, if it be admitted that the deceased neither looked or listened for the train, and also that if he had looked he could have seen it and if he had listened with his attention concentrated in that direction he could have heard it in time to avoid the accident, such facts would constitute such conclusive proof of contributory negligence on the part of the deceased as would have barred a recovery. Undoubtedly a failure to look or listen, especially where it affirmatively appears that looking' or listening might have enabled the party exposed to injury to see the train and thus avoid being injured, is evidence tending to show negligence. But they are not conclusive evidence, so that a charge of negligence can be predicated upon them as a matter of law. There may be various modifying circumstances excusing the party from looking or listening, and that being the case, a mere failure to look or listen cannot, as a legal conclusion, be pronounced negligence per se. In determining whether the special findings are inconsistent with the general verdict, so that the latter must be held to be controlled by the former, this court cannot look at the evidence. All reasonable presumptions will be entertained in favor of the verdict while nothing will be presumed in aid of the special findings of fact. The inconsistency must be irreconcilable, so as to be incapable of being removed by any evidence admissible under the issues. (Citing cases.) Under these principles it must be held that there is no necessary or irreconcilable inconsistency between the special findings and the general verdict, especially in view of the fact that the jury, notwithstanding their finding that the deceased did not look or listen, also found that he was in the exercise of reasonable care.”
Under the evidence in this case, and in view of the fact that appellants were running their train at a rate of speed at least five times greater than the ordinance permitted, this case must be governed by the rule announced in Chicago and Eastern Illinois Railroad Co. v. Crose, 214 Ill. 602. In that case this court said (p. 606) : “It is undisputed that the train which caused the injury in this case was running at a greater rate of speed than ten miles per hour, in violation of the village ordinance, and this being so, a prima facie case of negligence was established against the appellant, (Illinois Central Railroad Co. v. Ashline, 171 Ill. 313,) and the injury must be presumed to have been inflicted by the negligence of the appellant company or its agents operating such train, and in such case it would be liable for all damages occasioned thereby. Such presumption may be rebutted, but the question whether the appellant’s evidence was sufficient, under all the circumstances, to overcome the prima facie proof of negligence was a question for the jury and was properly submitted to it, and the judgment of affirmance by the Appellate Court is conclusive.”
For the purpose of proving the existence of the ordinance relied upon, the court admitted in evidence, over the objection of appellants, a printed copy of that ordinance contained in a pamphlet, upon the first page of which appeared the following: “Revised ordinances of the village of Kansas, Edgar county, Illinois.—Revised and compiled by order of the board of trustees, by R. S. Dyas, City Attorney, 1905.” It will be observed that this pamphlet did not purport to be published by authority of the board. What is shown by the language quoted, so far as the board is concerned, is that the ordinances were revised and compiled by its order. If the court erred in admitting the ordinance as it appeared in the pamphlet, this error was afterward cured by the introduction of the ordinance as it appeared in the original manuscript, with the record proof of its passage.
It is also claimed that the court erred in admitting in evidence the record of a deed from the St. Louis, Alton and Terre Haute Railway Company to the appellant the Cairo, Vincennes and Chicago Railway Company. The objection is that the record is secondary evidence and no proper foundation was laid for its admission. The purpose of the introduction of the record appears to have been to prove that the Cairo, Vincennes and Chicago Railway Company was the owner of the line of railroad. The declaration charged that the Cairo, Vincennes and Chicago Railway Company was the owner,- and that the appellant the Cleveland, Cincinnati, Chicago and St. Louis Railway Company was operating the railroad. The only plea being the general issue, the character in which the defendants were sued was not put in issue. McNulta v. Lockridge, 137 Ill. 270; Pennsylvania Co. v. Chapman, 220 id. 428; Chicago Union Traction Co. v. Jerka, 227 id. 95.
To prove the expectancy of life of deceased the court admitted in evidence, over appellants’ objections, the Wigglesworth life tables. It is claimed it was error to admit them without first proving they were standard. These tables have been accepted by this and other courts and acted upon for many years as standard tables without first requiring proof of that fact. In speaking of the Wigglesworth, Portsmouth and Northampton tables, this court said in Henderson v. Harness, 184 Ill. 520: “The life tables so introduced in evidence are standard and recognized mortality tables. They were properly received in evidence.”
Some other objections less important in character are made to the rulings of the court in the admission of evidence, and some objections are made to the court’s modification of certain instructions offered by appellants and its refusal to give others. We have examined these questions but do not find them of sufficient importance to require a discussion of them in this opinion. In our opinion there was no substantial error committed by the court in the respects complained of, and on the whole record we find no error that would justify a reversal of the judgment.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.