delivered the opinion of the court:
The defendant in error recovered a judgment against the plaintiff in error for the death-of his intestate, James Dunworth. The Appellate Court affirmed the judgment and its record is now before us for review. A reversal is asked because the deceased was guilty of contributory negligence without which the accident would not have happened, the plaintiff’s counsel made improper statements in his argument, and the court gave an erroneous instruction.
The accident happened about two o’clock of a bright, clear day in February, at the crossing of Wallace street, running north and south, and the railroad tracks, running east and west and occupying the space which would have been Fortieth street if it had not been so occupied. The plaintiff in error had five tracks there, over which were operated the trains of a number of railroads,—^perhaps ten altogether,—engaged in hauling freight to and from the Union Stock Yards. The Lake Shore and Michigan Southern Railway Company also operated suburban passenger trains over these tracks. The crossing was at grade but the railroad trades were being elevated east of the street, the grade beginning about the east side of the street and rising to a point from 250 to 500 feet east of the street and then falling to grade at a point about 1000 feet east of Wallace street. The third of the trades (counting from the north) crossing Wallace street was the west-bound main track, the fourth the east-bound main track. Just before the accident an Illinois Central freight train going east on the east-bound main track had broken in two about seven car lengths from the rear, leaving four or five cars west of Wallace street. The crossing was blocked for-about ten minutes, when the two parts of the train were coupled .together and the train again started east. Mr. Dunworth and his wife came from the north, south on Wallace_ street, crossed the first three tracks, and were standing between the east-bound and west-bound main tracks, waiting for the moving freight train to clear the crossing so that they might proceed, when a Lake Shore and Michigan Southern suburban train came from the east on the west-bound track. The space between the north rail of the east-bound .track and the south rail of the west-bound track was only eight feet, which was reduced by the overhang of the cars on either track, and Mr. Dunworth, occupying this narrow space between the two moving trains, was thrown beneath the suburban train and killed.
The three counts in the declaration on which the trial was had charged general negligence in the operation of rolling stock at the crossing, failure to guard the crossing, and failure to maintain a flagman, as required by an ordinance of the city. The negligence of the plaintiff in error is not contested here, but it is insisted that a peremptory instruction should have been given to find for the defendant because of the contributory negligence of the deceased. The only witnesses who saw the deceased at the time of the accident were his wife and two laborers in the employ of the railroad company. These two men were working on the track at the north-east corner of the intersection when Mr. and Mrs. Dunworth came south on the east side of the street. Before going upon the tracks they crossed over to the west side of the street and then walked over toward the moving freight train. As Mr. Dunworth started across, or while he was upon the tracks, the men called to him and warned him,of the passenger train, which was then in sight coming toward him. He looked toward the approaching train, waved his hand to the men, called out to them and went on. The testimony of these witnesses is not contradicted. They were foreigners, unable to speak or understand English, and gave their testimony through an interpreter. It is argued for the defendant in error that the credibility of their testimony was a question for the jury. The jury could not, however, rightfully reject their uncontradicted and unimpeached testimony. Mrs. Dunworth testified that she did not see the train until it was "right beside her. She says that when they went upon the crossing they looked to see if there was any train coming, and there was none coming at that moment. It is undisputed that the suburban train could have been seen for a distance of 250 feet and in time to have given ample opportunity to get out of its way, even without the warning of the track laborers. It is argued that the deceased had a right to rely upon the observance of the duty imposed upon the plaintiff in error by the ordinance to have a flagman and "to give warning. A flagman could have given no more warning than deceased already had. It is manifest that the deceased expected the freight train ff> clear the crossing before the suburban train reached it, and that he voluntarily took his chance of being able to cross over behind the freight train ahead of the passenger train. In so doing he was guilty of such contributory negligence as to bar any recovery by his administrator. The court should have directed a verdict for the defendant.
In the course of the closing argument counsel for the defendant in error stated that there was here “the price of $10,000 for a man’s life suddenly hurled into eternity that if the company was not liable the “jury would not be sitting here trying the case—his honor would have thrown the case out of court;” that if it was not liable “that would have been a question of law for the court, and the court would have told the jury that there was no question of "fact;” that he was not going to offer many instructions; that the coroner’s inquest and the testimony were not before the jury; that the defendant’s counsel objected to its coming in and that the plaintiff’s counsel had no objection to its all coming in; that the deceased was a working man, earning about $600 a year, and the statute provided for the recovery of $10,000 for death; that counsel did not think “$10,000 very much for a man’s" life suddenly hurled into eternity;” that “if there was $10,000 heaped here on the floor in gold or in shining silver; that if that man,—this poor widow’s husband,—was placed by the side of that gold, alive and in good health, as he was, that poor woman would quickly turn her back upon the gold and silver to the breast—” All these statements were severally objected to and the objections were sustained by the court. The address was an impassioned appeal to the emotions of the jury, persisted in after repeated objections sustained by the court. Its deliberate purpose.was to arouse sympathy and excite prejudice, and this purpose was not defeated by the sustaining of an objection or the withdrawal of one remark to be immediately followed by another of like character. This kind of argument cannot be justified, and if willfully persisted in will justify the reversal of a judgment even though the court has sustained objections to it. It is, of itself, sufficient reason for granting a new trial.
The following instruction was given for the defendant in error :
“The court instructs the jury that if you believe, from a preponderance of the evidence, that the plaintiff has established his case, as alleged in the first, second or fourth counts of his declaration, or either of them, then you should find the defendant guilty and assess the plaintiff’s damages at such sum as you believe, from the evidence and under the instructions of the court, he is entitled to recover.”
The first count of the declaration charged that the defendant propelled certain of its rolling stock upon and over the person of the deceased, “who was then and there present upon the sa.id public highway of Wallace street and in the exercise of reasonable care for his own safety.” The averment of reasonable care in this count was limited to the time when the deceased was in the place where he was struck by the train, while the contention of the plaintiff in error was that he was guilty of negligence in placing himself in that position when he saw or by the exercise of reasonable care could have seen the approaching train and avoided placing himself in a position of danger. The instruction did not cover the care of the deceased in going into the dangerous platie, but only his care after he had gone there, and was therefore .erroneous. Krieger v. Aurora, Elgin and Chicago Railroad Co. 242 Ill. 544.
The judgments of the Appellate Court and the superior court are reversed and the cause is remanded to the superior court of Cook county.
Reversed and remanded.