delivered the opinion of the court.
The evidence presented by the record does not warrant this court in setting aside the verdict of the jury, neither upon the allegations of negligence on the part of appellant nor of ordinary care upon the part of the deceased. Sixteen witnesses testify that the bell was not rung nor the whistle sounded. Six testify positively that they -were. Twelve witnesses for appellee put the speed of the cut of cars at from eight to fifteen miles an hour. About the same number for appellant put it at less than six miles. An ordinance of the city prohibited a speed of over six miles an hour for a freight train, car or engine. Upon such, conflicting evidence the finding of the jury must prevail.
Hor do we find reversible error in the instructions given for appellee, nor in the refusal of the instructions specified by appellant.
In Norton v. Volzke, 158 Ill. 407, instructions identical with Hos. 1 and 2, as referred to in appellant’s brief, were given.
In that case the child was between ten and eleven years of age. In commenting upon the instructions the court say:
“ All the instructions may be considered together. These instructions inform the jury that the age and discretion of the party injured are proper subjects for inquiry; that the law does not require one of tender years to exercise the same degree of 'care and caution as a person of mature years, and that a child is only required to exercise that degree of care which one of that age would naturally and reasonably use in the same situation and under like circumstances.”
And further say:
“ While it is true, perhaps, that these instructions might have been more skillfully drawn, they correctly state the law in this State, and the jury could not have been deceived or misled by them.”
The question of ordinary care on the part of the deceased was for the jurors to answer. Chi. City Ry. v. Wilcox, 138 Ill. 371.
We see no error in the law as given them, touching this issue.
The action being brought by the father and mother, in connection with the brothers and sisters of the deceased, the doctrine of imputable negligence applies. But the jury Avere warranted in finding as a fact, that a child seven years and five months old, attending school Avith a sister eleven years old, Avhose father was a laborer, does not present a case of negligence on the part of the parents.
Instructions numbered one and two, asked by appellant; Avere properly refused. Humber one states this' proposition :
“ Under ordinary circumstances, employes, in operating a moving train of cars, are not required to stop or slow up the train in consequence of seeing persons, minors or adults, standing or approaching closely to the track in advance of the train; and such employes have a right to rely upon persons near or approaching" the track, exercising reasonable caution to avoid getting on the track or exposing themselves to danger.”
The matter for consideration was not what employes were required to do under ordinary circumstances, but what their duty was to do, when crossing a frequented street in a city of 2,000 inhabitants, with a cut of cars, with speed limited by ordinance to six miles an hour, and children of tender age approaching, and close to, or on the track.
Instruction numbered two is faulty for a similar reason.
The case must, however, be reversed for error in allowing B. P. Bandy, the father of deceased, to testify that he had but one arm. The abstract of this testimony is as follows :
“ My name is B. P. Bandy. I am plaintiff, as administrator of estate of Maggie Bandy. Have lived at Carter-ville since 1873, except about three years. Am forty-nine years old. Work around the mines.
Have you both arms ?
Ho, sir.
Objected to by defendant’s counsel.
Mr. Henshaw: Your honor, this evidence is sought to be introduced upon the question of contributory negligence.
Mr. Green : Your honor, please, the jury can see that
his arm is off and I can not see that it would assist this jury.
Mr. Henshaw: I understand the jury can see that his arm is off, but I want the record to show it.
By the Court: I don’t think it makes any difference; he can answer.
Defendant excepts.
Q. You may state whether or not you have both arms and hands off. A. Ho, sir.
Q. Which arm is off, or hand is off, if either, and where ? A. About an inch I guess, above the joint, or an inch and a half.
Defendant objects to question and answer; objection overruled; defendant excepts.
Q. An inch and a half above the wrist joint? A. Yes, sir; well it is something near as I can state, about an inch or probably an inch and a half above the wrist joint of the right arm.
Defendant objects to question and answer; objection overruled; defendant excepts.”
The father was entitled to recover only for pecuniary loss suffered by the death of his child. His physical condition could not affect the amount of such loss. In C. P. & St. L. R. R. v. Woolridge, 174 Ill. 333, where the father was killed, it was held reversible error to allow a son to testify that he was crippled, upon the ground that this fact could not affect the amount that plaintiffs were entitled to recover.
It is true, as counsel for appellee claim, that the stub of the arm will again appear if the case is retried. But the examination of the father particularly and specifically called attention to his condition.
It is not easy to see how the loss of a child seven years old causes $4,000 pecuniary damages to its parents, brothers and sisters. When so large an amount is awarded, in such a case as the case at bar, any improper testimony that a court can see may have contributed to swell the amount is reversible error.
For the cause stated, the judgment of the Circuit Court is reversed and the case remanded.