The plaintiff Dillon, in attempting to cross certain railway tracks at their intersection with the highway, received serious permanent injury caused by the vehicle in which he was riding being struck by a passing locomotive engine of the defendant company. On the trial of an action to recover damages for such injury, some of plaintiff's witnesses testified that they were near the crossing at the time, but did not hear any bell or whistle, and that in their opinion, if these signals had been given they would have heard them. Held, that the evidence was properly admitted as this is in effect saying that their attention was not distracted or their hearing impaired, and that they were therefore competent to speak as to the probability of the signals having been given.

Where the plaintiff was injured while crossing the defendant's railway in a carriage, owing to the alleged neglect of the defendant to sound the whistle or ring the bell on approaching the crossing, which was in constant public use, the plaintiff's view being obstructed by buildings, -the question whether the statute requiring signals to be given on approaching a highway applied to the crossing at which the injury occurred is immaterial. In view of the circumstances, it was the duty of the defendant to operate its trains at a moderate rate of speed, and to give the usual signal of its approach, without regard to the statute; and the fact that the pleader, in drawing the declaration, had the statute in his mind, does not exclude the recovery under the common law.

In suing at common law, in any case where the provisions of a public statute are applicable, it is, as a general rule, no more necessary to set the statute forth than it is to plead a provision of the common law having a like application to the case. The only exception to this general rule is where the remedy given by the statute is cumulative, and differs from that given by the common law. In that case, if the relief given by the statute is sought, the pleader must manifest that purpose or intent by apt reference to the statute.

On the trial of an action against a railroad company for personal injuries sustained, plaintiff's counsel was permitted, in addressing the jury, to refer to former trials of the action, and how they had resulted in plaintiff's favor, and that one judgment had been reversed on a technicality. Held, not material, as there had been no failure of justice.

APPEAL from appellate court, Fourth district.

John Dillon brought this action against the Chicago & Alton R.

32 A. & E. R. Cas.-1

Co. to recover damages for personal injuries sustained while driv
ing over a crossing. Judgment for plaintiff. Defendant appeals.
Luke H. Hite and Brown & Kirby for appellant.
W. H. Bennett and Dill & Schaefer for appellee.

MULKEY, J.-On the twentieth of November, 1882, John Dillon, the appellee, in attempting to cross the railway tracks of the National Stock Yards, in or near East St. Louis, at their intersecFACTS. tion with Avenue F, received a serious permanent injury. caused by the vehicle in which he was riding being struck by a passing locomotive engine owned and operated by the Chicago & Alton R. Co. The horse he was driving was killed outright, the wagon shattered to pieces, and Dillon himself was thrown a considerable distance, with such force as to cause a serious rupture, partially disabling him for life, and totally disabling him for several months. In 1883 he commenced an action on the case in the circuit court of St. Clair county against the Chicago & Alton R. Co., the appellant herein, to recover damages for the injuries thus received by him, which were laid in the declaration at $25,000. The record before us does not appear to contain a transcript of all the proceedings which have occurred in the case from its inception, yet we are able to gather from it that the cause has been tried three times, each trial resulting in a verdict for the plaintiff. In one of them the jury assessed the plaintiff's damages at $875, in another at $4000, and in the last at $3500.

The case has been heard twice in the appellate court. On the first hearing the judgment of the court below was reversed, and the cause remanded for further proceedings. On the last hearing that court affirmed the judgment of the trial court, and the present appeal is from the judgment of affirmance.

The avenue upon which the plaintiff was driving runs in a northwesterly and southeasterly direction, and the railway tracks by which it is intersected at the place of collision run nearly east and west. On the westerly side of the avenue, and immediately south of the tracks, is a large log-house, having many compartments, the east end of which is bounded by the avenue. This structure is from 60 to 100 feet in width, and extends westerly upon the line of the tracks its full length, about the eighth of a mile. It was so high and closely built that no one in the avenue south of the crossing could see a train or engine coming from the west. The engine which occasioned the injury was coming from that direction, and the plaintiff was approaching the crossing from the southeast, but, as his view of it was entirely cut off by the log-house on his left,. he consequently could not judge of the safety in crossing except by means of hearing. The large amount of business done at the stockyards, as is shown by the evidence, necessarily leads to a great

deal of travel back and forth over the crossing by those like the plaintiff doing business there.

In view of the circumstances stated, the duty of the defendant to operate its train at a moderate rate of speed, and to give the usual signal of its approach by ringing the bell or sounding the whistle, or both, become the more imperative. Of this there can be no question. The negligence imputed to the defendant in the declaration, and on account of which a recovery was had below, is the alleged failure of the defendant to do either of these things. It is averred in the declaration that the defendant neither rang the bell nor blew the whistle; also that the train was being run at a high rate of sp ed. This is denied by the defendant's plea, and the cause was tried on these issues.

SIG

NAL WAS GIVEN.

If the statements of the witnesses on the part of the plaintiff be accepted as true, all three of these averments in the declaration were sufficiently proved on the trial. If, on the other hand, the defendant's witnesses are to be believed, the defendant was guilty of no negligence whatever; but that injury complained of was the result of plaintiff's own imprudence and negligence. Of course, these questions are not before us, they having been definitely and finally settled by the appellate court adversely to the appellant. It only remains to consider whether any errors of law have intervened of sufficient gravity to require a reversal of the judgment. Several of appellee's witnesses were permitted to state on the trial, against the objections of the defendant, that they were near the crossing at the time of the accident, but did not hear EVIDENCE AS TO any bell or whistle, and that, in their opinion, if the WHETHER bell had been rung or the whistle sounded, they would have heard it, and this is assigned for error. We perceive no valid objection to the ruling of the court upon this subject. Questions of this character are constantly permitted by the most enlightened trial judges, and we are aware of no authority questioning the propriety of allowing them. The cases of Hopkins v. Railroad Co.,78 Ill· 32; Railroad Co. v. Moranda, 108 Ill. 576; s. c., 17 Am.& Eng. R. R Cas. 564; and Railroad Co. v. Conlan, 101 Ill. 93, cited by appellant's counsel as sustaining the contrary view,-do not, so far as we are able to discover, even look in that direction. Such questions are permitted as matter of convenience and to avoid prolixity in the examination. When a witness says he was near enough and would in his opinion have heard or seen a given signal had it been given, he, in effect, says there was nothing to prevent his seeing or hearing it, as the case might be. The permitting of these questions to be asked, obviated the necessity of asking a great many others to prevent certain unfavorable inferences that might be urged if not asked; such as whether their hearing was good, and, if not, to what extent injured; if good, whether their attention was attracted to anything else at the time; whether there was any noise or confu