We have carefully examined the evidence, as preserved in and brought here by the record, and find that upon the point whether deceased exercised ordinary care on the occasion in question, the evidence leaves the matter in such doubt that the jury might have been justified in finding either way upon that question; that upon the question of negligence on the part of the appellant railroad company, in any of the aspects charged in the declaration, the evidence was so very closely conflicting as to render it doubtful, at least, whether the plaintiff below was entitled to recover. In such a case it is the well established rule of the Supreme Court that, unless it shall appear that each instruction .to the jury, given on behalf of the successful party, stated the law with accuracy, and was free of all error calculated to mislead the jury, the judgment must be reversed and the cause sent back for a new trial. Chicago & Alton R. R. Co. v. Murray, 62 Ill. 326; Yolk v. Roche, 70 Ill. 297; Toledo, W. & W. R. R. Co. v. Moore, 77 Ill. 217; Cushman v. Cogswell, 86 Ill. 62; Toledo, W. & W. R. R. Co. v. Grable, 88 Ill. 441; The Am. Ins. Co. v. Crawford, 89 Ill. 62; Wabash Ry. Co, v. Henks, 91 Ill. 406; Ruff v. Jarrett, 94 Ill. 475; Stratton v. Cent. City Horse Ry., 95 Ill. 25; Steinmeyer v. The People, Id. 383; Swan v. The Peoole, 98 Ill. 610.
There was a conflict in the testimony as to whether, at the time of the accident, the train of appellant was running at an improper rate of speed, and as to whether the bell on the locomotive had been kept ringing as required by statute, with a decided preponderance, as we look at the evidence, in favor of appellant. How, seemingly, to meet that state of the case, the court, at the request of the counsel for appellee, by the third instruction directed the jury, in substance, that where a railroad crosses a common road, and a railroad train is approaching such crossing, the persons in charge of the train are bound to give reasonable warning, so that a person about to cross with a team and wagon may stop and allow the train to pass; and such warning must be reasonable and timely, so far as circumstances will reasonably admit of.
That instruction amounted to a suggestion to the jury that, even if they were obliged to find that the bell on the locomotive had been kept ringing, they might further consider whether that was a reasonable warning of the approach of the train.
In C. & A. R. R. Co. v. Robinson, 106 Ill. 146, the court say: “The substance of plaintiff’s seventh instruction is, that it is the duty of the railroad company, when its trains are about to cross a highway on a common level, to give ‘ due warning,’ so that a person traveling on the highway with a team and carriage may stop and allow the train to pass. Exactly what is meant by ‘due warning’ is not readily understood. The servants of a railroad company, when approaching a public road crossing, are required to give the statutory signals of danger—that is, to sound a whistle or ring a bell. These signals are well understood by every one, and they constitute all the ‘ warning’ the law requires the servants on the train to give. It may be the jury understood the words ‘due warning’ to mean more than the statute requires, and, if so, it made an erroneous impression, and ought not to have been given.”
The fourth instruction for plaintiff assumes, as a fact, that the servants of the defendant managed the locomotive and train of. cars attached in a negligent, careless and unskillful manner, and directed the jury to find for the plaintiff if they found that the deceased was killed in consequence thereof.
If that species of negligence is charged in either count of the declaration, it was controverted on the trial; and for the court to assume it as a fact was not only improper but prejudicial to the defendant. Ill. Cent. R. R. Co. v. Zang, 10 Bradwell, 594.
Upon a thorough examination we are unable to find, and counsel for appellee do not refer us to, any count in the declaration upon which the plaintiff could recover upon the basis of the hypothesis of the fifth instruction. ETor can we find any evidence offered with a view to a recovery upon that basis. There being no such basis in the proceedings or evidence, the instruction was improper. The East St. L. P. & P. Co. v. Hightower, 92 Ill. 139.
For the giving the instructions above specified, the jndgment will be reversed and cause remanded.
Judgment reversed.