delivered the opinion of the court.
Peter Edwall, the plaintiff in error, a man 75 years old, in good health and physical condition for his age, was in February, 1914, going north on the west sidewalk of 45th street in the City of Rock Island attempting to cross the four east and west tracks of the defendant railway. A through freight train was coming from the west on the south track and a switch engine was backing from the east on the third track. It was a cold, windy day. He wore an overcoat with a collar turned up and a cap drawn down over his. ears. He saw the through freight train approaching and crossed the south track a safe distance ahead of that engine. There was no obstacle to prevent his seeing the switch engine approaching from the east, and no reason why he did not see it except that his mind was directed to and engrossed by the approaching freight train, and there was smoke and steam that perhaps somewhat obstructed his view. When he reached the third track he was struck by the switch engine and very seriously injured. This action was brought to recover for that injury. At the close of the evidence the trial court refused defendant’s motion for a directed verdict. The jury found for the defendant and judgment' was entered on that finding, from which this writ of error is prosecuted. Plaintiff’s main contention is that there was error in admitting improper evidence and giving improper instructions for the defendant. Cross error is assigned that the court erred in refusing the defendant’s motion for a directed verdict, and it is insisted that the evidence fails to show due care by the plaintiff or negligence of the defendant, and therefore the judgment should be affirmed even if error is found in the record.
The declaration filed was of 5 counts to which the general issue was pleaded. The first count charged negligence in the operation of the through freight train, which the court, on the defendant’s motion, withdrew from the attention of the jury on the gr.ound that there was no evidence to maintain that charge. No error is assigned on that action of the court. The second charged in general terms negligence in driving • and managing the switch engine. The third, violation of the statute in failure to ring a bell or sound a whistle on the switch engine. The fourth, violation of an ordinance of the City of R-ock Island limiting the speed to 6 miles an hour. The fifth averred the existence of gates at the crossing and charged that they were not lowered a sufficient length of time before the locomotive arrived to serve as a warning. Each count contained an allegation of plaintiff’s due care, and other appropriate averments.
The facts so far stated are uncontroverted except there is conflict in the evidence whether the plaintiff crossed before or behind the freight train, and if before, how far. He says he passed before that engine, and appellant in its argument assumes that as the fact. There is some evidence to sustain the charge of negligence in each of the 4 counts, enough we think to require a weighing of the evidence to reach a conclusion as to any one of them whether the negligence there charged was proven. The question of plaintiff’s care depends upon the credit given conflicting testimony and conclusions to be drawn from facts so found. Plaintiff testified that he did not look to the east because he was watching the freight train from the west, and thaf the gates were not lowered when he went upon the crossing. Some of the other witnesses say that he ducked under the gates and ran across the tracks. The evidence is conflicting whether the switch engine was approaching at a rate of more or less than 6 miles. an hour, and what, if any, signal it was giving of its approach. Thé speed at which it was backing over the crossing might be partly estimated by the distance the plaintiff was thrown when he was struck. There is a sharp conflict of evidence on that question. Defendant’s counsel say “the preponderance of the evidence on the question of negligence (of plaintiff) is against the plaintiff.” The trial court was not re- • quired or permitted to direct a verdict for that reason. The Illinois authorities are collected in Libby, McNeill & Libby v. Cook,
The Supreme Court has since repeatedly cited and approved that case. In Devine v. Delano,
It is said in Bailey v. Robison,
It follows that the controverted evidence of negligence of the defendant and care of the plaintiff, and inferences to be drawn from facts fairly found by the jury bearing on those questions, were for their consideration (Johnson v. City of St. Charles,
The engineer, fireman and brakeman of the freight train were called as witnesses for the defendant. Bach of them saw and testified to several but not all of the occurrences. They were asked what was said between them at the time and permitted, over plaintiff’s objection, to answer that question. The objection should have been sustained. They occupied the position of disinterested men witnessing a transaction. Bemarks of such bystanders might be very prejudicial to one party or the other. It happened here that what they said was of little importance except to dramatize the situation and emphasize the defendant’s theory that the plaintiff was acting recklessly. We think the admission of the testimony prejudicial error.
When the declaration was filed, five acts of negligence were alleged in five counts as each causing the injury complained of. We suppose that is the general practice in the absence of a statute controlling the matter. (31 Cyc. 119.) The first count failed of proof and was withdrawn, leaving the charges in the second, third, fourth and fifth counts for the jury’s consideration. They were told in defendant’s sixth instruction that there could be no recovery under the second count charging careless and improper management of the switch engine, if proven, unless that negligence was the proximate and immediate cause of the injury. In its fourth, that there could be no recovery under .the third count, if proven, unless the ■ nonringing of the bell or the nonblowing of the whistle was the immediate and proximate cause of the injury. In its third, that before they could find for the plaintiff under the fourth count charging violation of the ordinance, excessive speed must be proven, as charged, and they must further find that the accident was the direct and proximate result of excessive speed, and would not have occurred if the switch engine had been running at a rate not exceeding 6 miles per hour. In its seventh, that there could be no recovery under that count unless such excessive speed was proven and was the immediate and proximate cause of the injury. In its thirteenth, that the verdict must be not guilty under that count unless they found from the evidence that the accident was the direct and proximate result of the excessive speed, as charged, and would not have occurred but for such excessive speed. In its ninth, that it must appear that the defendant was guilty of the negligence charged in some one count of plaintiff’s declaration, which was the direct, immediate and proximate cause of his injury; and unless it does so appear from the preponderance of all the evidence their verdict must be for the defendant company. These instructions directing the jury’s attention to proof required to connect the injury with the negligence charged cover the whole declaration, and amount to a direction to find the defendant not guilty if the jury are unable to say any one charge of negligence was the direct and immediate cause of the injury. They were told, in substance, if they believed each of the four charges proven, and that the injury was caused by those four acts of negligence, or some two or three of them, but were unable to find from the evidence that any one of them was the immediate cause, or to say that the accident would not have occurred if the defendant had not been guilty of some particular one of the charges, the verdict must be not guilty. The court erred in so instructing the jury. The fourth count charged violation of a municipal speed ordinance. We presume the general rule is, as contended by appellant’s counsel, that the violation of statutory regulations in operating a train is to he held prima facie negligence, but there must he further proof that the negligence caused the injury complained of. This court applied that principle in passing upon a charge of negligence in operating an automobile in violation of the Motor Vehicle Law in Latham v. Cleveland, C., C. & St. L. Ry. Co.,
We know of no authority for the statement that the negligence must be the sole or immediate cause of the injury. It is said in American Exp. Co. v. Risley,
. Whether the plaintiff was in the exercise of due care for his own safety at and before the time he was injured was a vital question, perhaps the controlling one. It was therefore unusually important that the instructions on the degree of care required of him should be clear, fair and accurate. There has been little excuse for attempting to divide either care or negligence into three classes since the decision in Chicago, R. I. & P. Ry. Co. v. Hamler,
Plaintiff’s due care could be established by a preponderance of the evidence, and under late holdings a slight preponderance would suffice. Defendant’s ninth instruction informed the jury that to entitle the plaintiff to a verdict it must appear from a preponderance of the evidence that in attempting to cross defendant’s railway track he was using due and ordinary care for his own safety. Its tenth, that if it appears from a preponderance of the evidence that the want of due or ordinary care on the part of the plaintiff at the time he approached and was crossing the tracks, if such want of care is shown by a preponderance of the evidence, was the cause in whole or in part of his injuries, then the verdict must be not guilty. By its twelfth, that if the jury believe from the evidence that ordinary care required plaintiff to look for the purpose of ascertaining whether the switch engine was approaching and not to advance upon the track without so looking, and that he was struck and injured because of failure to look, then the verdict should be not guilty. By its fourteenth, that if he did not prove by the greater weight of the evidence that he was free from negligence which contributed to the collision, he could not recover. And the fifteenth was a substantial repetition of the twelfth directing the jury’s attention specially to the question whether he should have looked and listened before going upon the track. We think these instructions misleading and calculated to draw the jury’s attention from the simple question whether the plaintiff, at that time and place, was conducting himself as would an ordinarily prudent person under the same or similar circumstances, and particularly mischievous in twice directing the jury’s attention to the admitted fact that the plaintiff did not look east before he went upon the track. It is said in Chicago, W. & V. Coal Co. v. Moran,
Defendant’s instructions were all written on.paper bearing its attorney’s card in watermark. The plaintiff vigorously urges that as error, charging that they were written on paper bearing the business card of defendant’s attorneys that tried the case, thereby ad- ■ vising, the jury that the court agreed with the defendant in its contentions. Defendant answers that it was an inadvertence which should be excused on the ground that the mark would probably not be noticed by the jury if they read' the instruction, which is probably true. And while it should not have occurred, still that cannot be presumed to have much influence on the verdict.
Defendant attempts to avoid some of the errors by stating rules of the trial court which are not in the record and therefore cannot be considered.
A brother-in-law of one of the firm of defendant’s attorneys (not the one that tried the case) was accepted on the jury without plaintiff’s knowledge of that relation. Affidavits are filed here tending to show that the juror evaded questions put to him on his voir dire that ought to have developed the fact, and defendant’s attorneys differ from the plaintiff’s counsel as to what did occur, but admit that the brother-in-law sat on the jury. We do not regard this reversible error, but are of the opinion that plaintiff’s attorneys should have been advised by counsel of the relation.
There was material error in defendant’s tenth given instruction occasioned by the use of the word “as” instead of “is.” Defendant claims the proper word was used in the instruction read to the jury, and that .the error arises from a mistake in copying the instruction into the record, and has filed an additional record corrected in that respect. Plaintiff moved to strike that record from the files, and we took the motion with the case. We have not considered or discussed that error in deciding the case. In our opinion the result does not depend upon that question, but to complete our record we deny that motion of the plaintiff.
We conclude that the record shows errors so prejudicial to the plaintiff that he is entitled to another trial of the issues involved; therefore the judgment is reversed and the cause remanded.
Reversed and remanded;