On material facts in this case the evidence is conflicting and the case a close one on the facts. It was held in C., B. & Q. R. R. Co. v. Dvorak, 7 Ill. App. 555: “ Where, as in this case, the evidence is closely conflicting as to necessary elements of the plaintiff’s cause of action, we hold it to be a rule founded in the plainest principle of justice and essential to its fair administration that such party shall not be suffered to gain an undue advantage over the opposite party by means of defective and misleading instructions to the jury. Of such a character is the one given for the plaintiff * * * The question of fact essential to the cause of action, that the plaintiff received his personal injuries in consequence of the neglect of the engineer to ring the bell or sound the whistle * * * is wholly excluded from the consideration of the jury. Unless the injury was the result of such neglect or breach of duty there could be no recovery, and that authority is sustained by Galena R. R. v. Dill, 22 Ill. 264; I. & St. L. R. R. Co. v. Blackman, 63 Ill. 117; T., W. & W. Ry. Co. v. Jones, 76 Ill. 311.”
It was error to give the sixth instruction above for plaintiff.
The child born after the death of deceased occupies such relation to him that he inherits the estate of deceased the same as if living at the time of his death. Sec. 2, Chap. 70, Starr & C. Ill. Stats, provides: “ Every such action shall be brought by and in the name of the personal representatives of such deceased persons, and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property.”
It should have been alleged in the declaration that he was next of kin and there was a variance as to the allegation as to the next of kin left by deceased.
There was also error in the admission of evidence as to placing an object on the track and proof as to the distance it could be seen and distinguished where the circumstances and surroundings were wholly different from those attendant on the engineer in the discharge of his duties. Yates v. People, 32 N. Y., p. 511.
We express no opinion as to a right of recovery on the facts. For the errors indicated, the judgment must be reversed and the cause remanded.
Reversed <md remanded.