| Ill. | Jun 16, 1888
delivered the opinion of the Court:
Since the right of recovery here is based upon the negligence of the defendant, it is not sufficient merely that plaintiff’s intestate became alarmed by reason of appearances produced wholly or in part by the defendant,—it must appear that that which produced the alarm, and, through it, the injury, was negligence of the defendant. The burden is upon the plaintiff to prove this negligence, and that is not done by proof, alone, that a peculiar signal was given by an engine of the defendant, and that it caused or aggravated the alarm of the intestate. If the signal given was, under the circumstances, a proper one, it can not have been negligence to give it.
The instruction quoted in the preceding statement, assumes that there was evidence before the jury tending to prove that the defendant’s servants negligently gave an alarm signal by blowing an engine whistle. There is no such evidence in the record. As will be seen by reference to the facts in the preceding statement, the only evidence in regard to the blowing of an engine whistle is, that an alarm whistle was blown, or, as one phrases it, “a danger signal” was given by the whistle. There is an entire absence of evidence of the purpose of giving signals by the whistle, for whom they were intended, and the results they were expected to produce. Nor is there any evidence tending to show that the signal here was unnecessarily given.
If we are left to take judicial knowledge of the purpose of giving signals by the whistle, then we know that they are not intended for the passenger on the train at all. They are for those operating the road, and to notify those who, but for the signal, might come in collision with the train, of its presence. Communications are ordinarily made with passengers, in regard to matters affecting them personally, by the conductor, more rarely by porters or other employes; but the passenger is never required to understand and heed any signal given by the whistle of the engine. No witness testified, as this instruction assumes, that the signal given was such as is usually given “to avoid collision on the track.” If those in charge of the engine apprehended injury to the ears, or to the other property of the company, or to the passengers or train-men on or near the south track, by the too rapid movement of the snow-plow, it was not only prudent, but it was their duty, to give a danger or alarm signal by the whistle to those in charge of the snowplow, so that they might moderate its speed; and since, from all the evidence, it is apparent that those in charge of the train knew that the snow-plow was on the south track, and hence that there could be no collision, it is much more "reasonable to infer that this was its purpose than that it was to avoid a collision.
It is not charged in the declaration that the train on which plaintiff’s intestate was riding, was through negligence upon the north track, and there is no evidence tending to sustain such an allegation had it been made; and it is clear, beyond all question, that the running into the snow bank was the result of an inevitable casualty. It is not claimed that the curve in the road, the darkness of the night, or the violence of the storm, can be regarded as evidence tending to establish negligence, and hence the jury must have accepted the fact that the whistle blew an alarm, as conclusive proof of negligence, and the giving of this instruction was therefore error.
The judgments of the circuit and Appellate courts are reversed, and the cause is remanded to the circuit court for a new trial. The clerk of this court will tax the costs made in the Appellate Court against the appellee, upon certificate of the amount to be filed by the clerk of the Appellate Court.
Judgment reversed.