It is insisted that there is no evidence that at the time of the injury the deceased Avas exercising ordinary care. ■
While it is true that in an action for personal injuries, based upon the negligence of the defendant, it is an essential element of the plaintiff’s case that the injured party must haAre been in the exercise of ordinary care, yet it is not indispensable that such fact should be directly shown by aiidrmative evidence. There is in all men a natural instinct of self-preservation, and such instinct is an element of evidence of Avhich the jury may take notice, and, in the absence of all testimony upon the subject, find that a deceased party, in obedience to the ordinary instincts of mankind, exercised that care for his safety which a prudent man would under the same conditions have made use of. Johnson v. Hudson Ry. Co., 20 N. Y. 65-69; Allen v. Willard, 57 Penn. St. 374-380; Northern Ry. Co. v. Price, 29 Md. 429-438.
'Nor is it conclusive proof of negligence that one, Avhen injured, Avas standing upon the track of a railroad. Northern Ry. Co. v. Price, 29 Md. supra.
The deceased had a right to cross appellant’s track at the place where he awis struck; and Ave can not say that it was unreasonable for him to infer that Avhile one of appellant’s passenger trains Avas standing at the crossing, presumably for passengers to get on or off the same, another train Avould not be run by at a dangerous rate of speed. Pennsylvania Co. v. Keane, 41 Ill. App. 317.
The jury, upon questions specially submitted to them at the instance of appellant, have found that the deceased could not, by the use of ordinary or reasonable care or prudence, have seen or heard the approaching train before attempting to cross the track. We do not find in this record anything that Avould Avarrant ns in saying that such finding is unsupported by the evidence.
It is also urged that the jury should have been instructed that the failure to have gates or keep a flagman at this crossing was not, of itself, evidence of negligence, but that before the jury would be warranted in finding the railway company negligent in not keeping a flagman or gates at such crossing, it must be first shown that the said crossing is more than ordinarily hazardous, and that the circumstances and surroundings of the crossing are of such a character that common prudence would dictate, and the exercise of ordinary care for the safety of the public require, that the railway company place a flagman or erect gates at such crossing.
It is impossible for us to say, as a matter of law, that railway companies are only required to erect gates or place flagmen at crossings which are more than ordinarily hazardous; how dangerous the ordinary grade crossing is, we do no't know, nor what means, if any, outside of statutory and police regulations, it is the duty of railway corporations to adopt for the safety of the public at ordinary crossings.
Much, in this regard, would seem to depend upon the care exercised by the company in the running of its trains, and the speed at which they are driven over the crossing in question. The instruction, as asked, omitted important things which should be considered in determining the question of negligence, and there was no error in refusing to give it.
It is only where the conclusion of negligence, or a want of it, necessarily results from the statement of the facts, that the court can be called upon to say to the jury that such facts, as a matter of law, either establish, or fail to show, negligence. Lincoln Ill. Co. v. Johnson, 37 Ill. App. 453; L. S. & M. S. Ry. Co. v. Johnsen, 135 Ill. 641.
It is urged that the court erred in striking from the fourth instruction asked by appellant, the words applicable to the conduct of the deceased, “ having in view all the known dangers of the situation.”
Had these words remained in the instruction, the jury might have doubted whether by “known dangers” was meant those which the deceased knew, or those which actually existed and were known to others—the parties operating the train, or the railroad company.
There was no evidence that the deceased knew that a train was approaching from the south at the rate of fifteen miles an hour, or would run over the crossing without stopping.
The jury have specially found that the deceased was exercising ordinary care for his safety at and before the time he was injured, and that the train by which he was struck and killed was moving at a reckless and improper rate of speed; the instructions given fairly presented the law applicable to the case, and we find no error requiring a reversal. The judgment of the court below will therefore be affirmed.
Judgment affirmed.