delivered the opinion of the court:
Alexander Moore was killed by an interurban electric passenger car owned and operated by plaintiff in error, at a public crossing known as Swartz’s crossing, in Macon county, outside the limits of the city of Decatur. Defendant in error, as administratrix of Moore’s estate, brought this suit to recover damages for his death. Her declaration charged general negligence; negligence in the construction of an embankment on the right of way of the plaintiff in error in such a way as to obstruct the view of persons driving upon the highway as they approached the crossing from the north, of cars of the defendant approaching from the east; negligence in the maintenance of said embankment, and in allowing weeds to grow and remain on the same so as to obstruct the view of persons traveling in vehicles over the highway. The jury returned a verdict in favor of the defendant in error in the sum of $5000 and .judgment was entered thereon, which judgment has been affirmed by the Appellate Court, and the cause is brought here by writ of certiorari.
The decedent was killed by a collision between the automobile in which he was riding and one of plaintiff in error’s cars. The deceased was the only occupant of the automobile. The record contains testimony of various witnesses, also photographs showing the condition of plaintiff in error’s right of way at the crossing. Some witnesses testified that the embankment was six or eight feet in height and that the weeds growing thereon were three or four feet in height. It is not contended by plaintiff in error that there is no evidence of negligence on its part in maintaining its embankment in this condition. Counsel, however, moved to instruct the jury to find the defendant not guilty, for the reason, as they contend, that the record contains no evidence of the exercise of due care on the part of the deceased. Defendant in error in her case in chief offered no testimony of eye-witnesses to the accident but offered proof of habits of care and caution .on the part of the deceased. Several passengers on the interurban car testified to having seen the accident, when called as witnesses for the defendant. Upon such testimony being given, the court on its own motion struck out of the record all testimony in relation to habits of due care on the part of the deceased, and plaintiff in error contends that since the trial court struck out all of said testimony the record contains no evidence whatever of due care on his part and that the record is barren on that subject. The defendant in error having offered no testimony of eye-witnesses, it was not error oh the part of the trial court to admit testimony of habits of care on the part of the deceased. Newell v. Cleveland, Cincinnati, Chicago and St. Louis Railway Co.
Plaintiff in error complains that while the above evidence was stricken it was prejudicial to have had it in the record at all. It, however, is scarcely in a position to complain of such a condition of the record. It presumably knew at the time the evidence of habits of care was being introduced that witnesses might be called who had seen the accident, and it would be in a much better position to complain had it offered the use of such witnesses to defendant in error. The deceased was riding alone. The defendant in error, as his representative, had no opportunity of knowing who, if anyone, was an eye-witness to the accident. The record shows that the servants of the plaintiff in error took the names of different persons on the car, among whom were eye-witnesses to the accident. If it desired to avoid the effect of any prejudice by reason-of the stricken testimony having been in the record it should have offered the names of persons who were' eye-witnesses, and not having done so it is not in a position to complain of prejudice against it by such testimony having been in the record. Furthermore, we are of the opinion that there is sufficient evidence in the record, from the testimony of eye-witnesses offered by the plaintiff in error, to warrant the case going to the jury on the issue of due care on the part of the deceased. Nine witnesses testified to having seen the accident or portions of it. The testimony of some of these witnesses is of no value on the question whether or not the deceased was in the exercise of due care. Some of these witnesses, however, gave testimony tending to show due . care on the part of the deceased. The witness Staley testified concerning the speed of the automobile. His testimony was that the automobile seemed to slow down as it approached the crossing and that it had almost stopped when struck by the car. Another- witness testified that when he first saw the deceased he seemed to be attempting to do something with the handles or levers about the car. If the jury believed the testimony of witnesses to the effect that it was difficult to see the car approaching this crossing from the east until the driver coming from the north was almost upon the track, they might well have believed, if they also believed Staley’s testimony, that the deceased was in the exercise of due care in endeavoring to slow down his car before he was struck. The court, therefore, did not err in refusing plaintiff in error’s peremptory instruction.
Plaintiff in error also contends that the trial court erred in permitting evidence of other accidents which had occurred at this crossing. The evidence complained of was to the effect that previously a man by the name of Warren had been injured at this crossing as he was driving north on the highway, the car which caused that injury coming from the east, and that previous to that time a young man by the name of Gould and his companion were killed at this crossing by one of plaintiff in error’s cars as Gould was driving north on the highway, the car causing the injury in that instance coming from the west. On motion of plaintiff in error the testimony concerning the latter accident was stricken out on the ground that the same was hearsay. Plaintiff in error complains that though stricken out the evidence was nevertheless prejudicial.
The rule in relation to the competency of testimony of other accidents is, that where such testimony tends to show the common cause of the accidents to be a dangerous, unsafe thing or condition the evidence as to such accidents is competent, not for the purpose of showing independent acts of negligence but for the limited purpose of showing that the unsafe thing or condition causing the particular accident was the condition or cause common to such independent accidents, and that the frequency of such accidents tends to show knowledge of such condition. (City of Chicago v. Jarvis,
Plaintiff in error also complains of certain instructions. We have examined the instructions, given and refused by the court and are of the opinion that the jury were fully and fairly instructed in the cause.
For the error indicated the judgment of the Appellate Court will be reversed and the cause remanded to the circuit couit.
Reversed and remanded.