50 Ill. 151 | Ill. | 1869
delivered the opinion of the Court:
The question of the weight of evidence was for the jury, and they having determined it, we will not disturb their finding, unless it is not supported by the proof. It is their province to weigh and reconcile the evidence where it may be done, and if not, then to give it such effect as it is entitled to receive, rejecting such portions as may be unworthy of belief, and giving due weight to such as they may believe to be true. In this case there was a conflict of" evidence as to whether a bell was rung or a whistle sounded for the distance required by law before reaching the road crossing where the cattle were killed. The jury having found there was not, we are not prepared to hold their finding is not supported by the evidence.
Appellants insist that the court below erred in giving appellee’s third instruction. It informed the jury that the omission to ring a bell or sound a whistle at the road crossing as required by the statute, was prima facie evidence of negligence. In the case of the Galena & Chicago Union R. R. Co. v. Dill, 22 Ill. 271, it was held that it is a question of fact, to be determined by the jury, whether such an omission is negligence. In that case, the statute imposing that duty on railroad companies had been repealed as to that road, and hence it was a question arising under the common law, whether such an omission was negligence. That case is not therefore an authority in this, as the question presented by this instruction is whether the omission of a duty imposed by the statute constitutes prima facie negligence, or whether in such a case the plaintiff is bound to prove other omissions of duty which constitute negligence. In the case of The Great Western R. R. Co. v. Geddis, 33 Ill. 304, which was similar in its facts to this, it was held that the failure to ring a bell or sound a whistle at a road crossing was negligence that should render the company liable for injuries, growing out of the omission, that might be occasioned by their engines, to persons or property; that the omission to perform an act imposed by the statute was negligence. In that case the cases of The Ill. Cent. R. R. Co. v. Phelps, 29 Ill. 447, and The Ill. Cent. R. R. Co. v. Goodwin, 30 Ill. 117, were referred to and distinguished from Geddis’ case. It was said of those cases that the animals were killed at a place where the statute did not require the signal to be given, whilst in Geddis’ case the injury to the animal was at a highway crossing where the signal was required. That case is in point and must govern this. The court below did not err in giving this instruction. No error being perceived in this record the judgment of the court below must be affirmed.
Judgment affirmed.
