delivered the opinion of the court:
Aрril 1, 1918, appellant, Walker D. Hines, as Director General of Railroads, was operating the Chicago and Eastern Illinois Railroad from Chicago south through the State of Illinois. Bеtween Grant Park and Momence, in Kankakee county, the road ran through a farm operated by John Petro, deceased. West of the right of way is a wooded hill, on which árе located the farm buildings. East of the right of way are level, open fields. There are three tracks on the right of way through this farm. The railroad runs almost directly south from Grant Park until it reaches this farm, when it curves to the west around the hill on which the buildings are located. Across the tracks east of the buildings is a farm crossing. The right of way is fenced and there is a gate in еach fence. At the farm crossing the tracks are planked. During the day deceased had worked in one of the fields on the east side of the right of way. About sundown he left his work аnd started toward the house. Appellant's south-bound passenger train, due out of Grant Park at 7:13 P. M., left there a few minutes late. It was running on the west or south-bound track. The fireman, who was sitting on the left-hand side of the engine cab at the time of the accident, testified that when the train was between 1000 and 1300 feet north of the farm crossing he saw deceased at thе gate on the east side; that deceased turned from the gate and walked at an ordinary pace toward the tracks; that the engineer sounded the whistle for the crоssing about this time and that the bell was automatically ringing; that deceased continued to walk toward the south-bound- track, and that he looked toward the train when it was 75 or 100 feet away and then began to run across the track in front of the train. The engineer, who was sitting on the right-hand side of the engine cab, testified that the first he knew of the presence of dеceased was when he saw his body rolling into the ditch on the west side of the track. The train was stopped and deceased was taken to Momence, where he died withоut gaining consciousness. Appellee filed her declaration in the circuit court of Kankakee county, in which she charged that appellant operated his train without a headlight after sundown, in violation of the statute, and that he otherwise negligently and carelessly operated and managed said train. A plea of general issue wаs filed and the cause was submitted to a jury. They returned a verdict of guilty, fixing appellee’s damages at $10,000. Judgment was rendered on this verdict, and this judgment was affirmed on review by the Appеllate Court for the Second District. A certificate of importance was granted and this appeal prosecuted.
Appellee, over the objection оf appellant, was permitted to prove that deceased was a man of careful habits. Such proof is admissible where there are no eye-witnesses to the accident. The rule adopted in this State and approved by repeated decisions requires the plaintiff in a personal injury case to prove that the persоn injured was in the exercise of due care at the time he sustained the injury for which damages are sought. Where the injury results in death and suit is brought by a personal representative the personal representative must show that deceased exercised ordinary care to avoid the injury, but it is not necessary, especially where no one saw the killing, to prove such care by direct testimony but such care may be proven by circumstantial evidence. (Illinois Central Railroad Co. v. Nowicki,
The fireman who testified on this trial that he was an eye-witness to the accident had testified at the coroner’s inquest and at a former trial of this cause. On both of these occasions he had given substantiаlly the same testimony that he gave on this trial. When appellee offered to show that deceased was a man of careful and prudent habits appellant objеcted on the ground that the evidence was incompetent unless appellee could show that there were no eye-witnesses. Counsel for appellee contended that under the rule laid down in Illinois Central Railroad Co. v. Ashline,
At the close of appellee’s evidence, and again at the close of all the evidence, appellant moved the court to instruct the jury to find the defendant not guilty, on the ground that there was not sufficient evidence before the jury to sustain her cause of aсtion. All controverted questions of fact have been settled by the judgment of the Appellate Court and we are limited in our review of the case to the determination of the question of law presented by this motion. The general rule is that negligence and contributory negligence are questions of fact for the jury, ' and so long as a question remains whether either party has performed his legal duty or has observed that degree of care and caution imposed upon him by law, and the determination of the question invоlves the weighing and consideration of evidence, the question must be submitted as one of fact. (Chicago, St. Louis and Pittsburg Railroad Co. v. Hutchinson,
There are other errors assigned and argued, but inasmuch as they are not likely to occur on another trial of this cause we have concluded that to discuss them would unnecessarily lengthen this opinion.
After striking out the evidence of careful habits of deceased there is no evidence in this record of due care, and the judgments of the Appellate Court and the circuit court are reversed and the cause is remanded to the circuit court of Kankakee county for a new trial.
Reversed and remanded.