Appellee recovered a judgment of $5,000 against appellant in the Superior Court for causing the death of her son at a street crossing in the village of South Evans-ton, and to review said judgment, appellant prosecuted this appeal.
Appellant operates a double track railroad from Chicago to Evanston, which crosses Greenleaf street, an east and west street in the village of South Evanston, at right angles. Appellant’s north bound trains .use the east tr.ack, and its s.outli bound trains the west track, and these tracks are parallel and close together. After dark on March 11,1887, deceased with his sister was passing east on the south side of Greenleaf street, and just as the crossing of appellant’s tracks was reached a north bound train of some ten cars was passing at a rapid rate. Just as the north bound train cleared the street, deceased and his sister were struck while crossing the west track by the engine of the south bound train, and deceased was billed, the sister receiving some injuries from which she recovered.
The train which struck deceased consisted of two passenger coaches drawn by one engine which was being run fear end in front, with a tail end or switch light something more than half the size of the ordinary headlight upon the tender. The ordinance of South Evanston provides that “every locomotive engine, railroad car, or train of cars running in the night time in the said village, shall have and keep a brilliant and conspicuous light in the forward end, and while backing up on the rear end of such locomotive engine.”
Appellees contend that the use of the tail end light was not a “conspicuous light,” and it was negligence to use it, and also that it was negligence on the part of the company not to have gates or lights or a watchman at the said Green-leaf street crossing, and that there was further negligence in the rate, of speed at which the train was run, and that no bell was rung and no signal given of the approach of the train at the time of the accident. As to the speed of the train there was a conflict of evidence, appellees’ witnesses estimating that it was being run at not less than forty miles an hour, and appellant’s that it was not running faster than about thirty miles an hour. There was a like conflict as to whether the bell was ringing as the engine approached the crossing. Whether the appellant was guilty of negligence in running its train or in operating its road, in any of the matters alleged, was a question of fact to be determined by the jury upon consideration of all the evidence in the case. Counsel for appellant makes some criticism on the instructions given by the court on behalf of appellee, but a careful examination of said instructions shows them to be free from legal error.
The instruction given as to comparative negligence does not contain the hypothesis that'deceased was, at the time of the accident, in the exercise of ordinary care. The instruction does not authorize a recovery on the facts supposed on it, but states, in a form of words often approved by the Supreme Court, the rule of comparative negligence as it obtains in this State. The .other instructions for the plaintiff all require the jury to find that deceased exercised ordinary care, in order to find a verdict for the plaintiff. Careful practitioners will always insert the hypothesis of ordinary care in drawing the contributory negligence instruction, but its omission from such instruction will not be regarded as a ground for reversal when other instructions for plaintiff contain such hypothesis as a condition of plaintiff’s recovery. Chicago v. Stearns, 105 Ill. 554; C. & A. R. R. Co. v. Johnson, 116 Ill. 206; Willard v. Swanson, 22 Ill. App. 424, and same cases in Supreme Court, 18 N. E. Rep. 548.
There was no direct evidence in this case that deceased was in the exercise of ordinary care at the time of the accident, but from all the facts and circumstances in evidence the jury could determine whether he exercised such care for his safety as one of ordinary prudence would have done under the same circumstances, there being no evidence that he was in fact negligent. We can not say that the circumstances of the accident were such that the inference that deceased used due care was not warranted. Chicago & Alton Ry. Co. v. Carey, 115 Ill. 115.
All of the appellant’s instructions were refused by the court, and the refusal is pressed as erroneous. All but one of said instructions required the court to state to the jury in effect that if deceased went upon the track when he was struck without looking in the direction from which the engine which struck him came, he was guilty of such negligence as barred a recovery. Such instructions were properly refused. The court was not authorized under the facts and circumstances in evidence to declare that a failure to look in all directions for approaching trains before, attempting to cross the tracks was negligence. C., St. L. & P. R. R. Co. v. Hutchinson, 120 Ill. 587. One of appellant’s instructions was, that in order to recover deceased must have been in the exercise of ordinary care at the time of the accident. This instruction might well have been given, but its refusal will not reverse, because the same rule was abundantly announced to the jury in the plaintiff’s instructions.
The judgment of the Superior Court will be affirmed.
Judgment affirmed,.