Opinion of the Court. statute, and insisted that it should be taken into consideration in fixing the defendants' terms of imprisonment, if they were found guilty. To this, defendants' counsel interposed an objection, but it was overruled, and an exception taken. This was error. That statute has no application whatever to criminal trials. It relates purely to prison government and discipline. Whether a convict shall receive a reduction of time for good conduct during his imprisonment, is a question between him and the prison officials. To permit a jury to be in any way influenced by it in fixing a prisoner's punishment, would tend to defeat its object. Plaintiff in error did not testify on the trial, but his codefendant, Norton, did. An instruction was asked, on behalf of plaintiff in error, to the effect that no presumption of guilt should be indulged against him because he had not testified in his own behalf, but it was refused. Section 426, chapter 38, of the Revised Statutes, expressly provides that the neglect of a defendant on trial, charged with a crime, to testify, shall not create any presumption against him. No reason whatever is suggested for the refusal of the instruction asked. The giving of it became doubly important to the plaintiff in error by the giving of one, on behalf of the People, as to the weight to be given to Norton's testimony, by which the attention of the jury was directed to the statute making defendants in criminal trials competent to testify in their own behalf. The instruction should have been given. For the errors indicated, the judgment of the Criminal Court will be reversed, and the cause remanded. Judgment reversed. Syllabus. Opinion of the Court. 133 248 137 288 39a 298 133 248 40a 363 41a 348 150 555 44a 180 THE CHICAGO, MILWAUKEE AND ST. PAUL RAILWAY COMPANY v. ELIZA S. HALSEY, Admx. Filed at Ottawa March 29, 1890. 1. NEGLIGENCE-contributory negligence-want of due care in ap133 248 proaching a railway crossing. One who, failing to use due care, blindly walks into a danger that the observance of due care would have enabled him to avoid, is no less guilty of contributory negligence than he who, by the observance of due care, could extricate himself from danger, and fails to make any effort for his personal safety, and because thereof is injured. 133 248 51a 337 133 248 48a 246 133 248 69a 280 133 248 177a 489 133 248 86a 439 133 248 f99a 1530 133 248 101a 12 101a 3 52 e101a3 53 133 248 105а 39 105a 582 133 248 203 1613. j203 1619 133 248 111a 1358 133 2. So on approaching a railroad crossing, one is bound to know that it is a place of danger, and he must have that regard to the sights and sounds warning him of an approaching train, that a man of ordinary caution, under like circumstances, would have. 3. Where the question is whether the person killed by a locomotive at a railroad crossing observed due care to avoid injury to himself in going upon the railroad track in the manner and at the time and place that he did, and the circumstances in evidence put the conduct of the railway company and the deceased fully and fairly before the jury, they should be left to determine, from the circumstances, whether the deceased observed due care for his personal safety, without any reference whatever to the fact that there was no direct evidence of what he did at the time of the injury. APPEAL from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook 248 county; the Hon. JOSEPH E. GARY, Judge, presiding. 114a 1478 133 248 Mr. E. WALKER, for the appellant. 115a 3564 Messrs. FLOWER, SMITH & MUSGRAVE, for the appellee. Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court: The questions presented upon this record, in the arguments before us, arise upon an instruction given on substantially the following facts in evidence before the jury: Appellant operates a double track railway, running north and south, between Chicago and Evanston, for suburban Opinion of the Court. service. The Chicago and Northwestern Railway Company also operates a like railway, parallel with that of appellant, and some 50 feet to the west of it. The village of South Evanston lies south of and adjoining Evanston, and these lines of railway pass through it. Greenleaf street, of South Evanston, runs east and west, crossing the tracks of these railways at right angles. Dempster street, of this village, also runs east and west, crossing these railway tracks at right angles. There is a railway station at this crossing, which is about 1540 feet north of the Greenleaf street crossing. There is also a station for South Evanston, which is about one-fourth of a mile south of the Greenleaf street crossing, and about one mile south of Evanston station. There are numbers of street lamps at and north of the station at Dempster street crossing, but none south of that station and north of Greenleaf street crossing. Benson avenue is also a street of South Evanston, running north and south, parallel with these lines of railway, and at a distance of a few hundred feet west from the tracks of the Chicago and Northwestern Railway Company. Appellant's engines used in drawing its suburban trains are constructed to be operated in either direction, having, however, in the rear, only what is described as a tail or switch-light, with but one-half the illuminating capacity of the ordinary head-light, and they are operated from Chicago to Evanston with the ordinary head-light in front, and from Evanston to Chicago without being turned, with this tail or switch-light in front. There is a bell of the usual weight and quality upon all of these engines, and appropriate machinery for operating it automatically. There is in force an ordinance of the village of South Evanston requiring that "every locomotive engine, railroad car or train of cars running in the night time in the said village, shall have and keep a brilliant and conspicuous light on the forward end, and, while backing up, on the rear end of such locomotive engine." The village of South Evanston has a population of about 2000, of which about 1200 are on Opinion of the Court. the west side and 800 on the east side of the tracks. Greenleaf street crossing was used, but not so largely as the crossing of Lincoln avenue, the parallel street next south, which was better improved. On the evening of the 11th of March, 1887, after dark, the intestate, George Halsey, who was twenty-one years old, left the residence of his mother, the appellee, on Benson avenue, in company with his sister, Eliza, who was about fifteen years of age, for the purpose of escorting her, along Greenleaf street, across the railway tracks, to an entertainment at the house of a friend, beyond those tracks. Their line of travel lay east, along the north side of Greenleaf street, until near the railway tracks, then south across the street to its south side, then east across the tracks. But one witness saw them, after leaving appellee's residence, before they got upon the track of appellant's road, and he met them about five feet from the Northwestern tracks. At this time a train had just gone north on appellant's road, which passed a train on appellant's road coming south, about 50 feet north of the Greenleaf street crossing, and the intestate and his sister were struck by this train, and he instantly killed, and she badly though not permanently injured. The fireman saw them just as they were struck. No one else saw them at or immediately before that Occurrence. The sister has no recollection of anything that occurred after she left appellee's house. The witness who met them, and the brakeman who saw them just as they were struck, testify to nothing respecting them, save the facts of thus meeting and seeing them. Negligence is alleged in running at a reckless speed; in not ringing a bell or sounding a whistle; in not having gates or bars or watchman at street crossing; and in running the engine backward at a dangerous speed, without sufficient headlight, in violation of village ordinance. Special interrogatories were propounded to the jury, and they found in response thereto, among other things, as follows: Opinion of the Court. Q. "Upon which track of the defendant was the train mov-. ing that struck the deceased, and in which direction was said train going? A. "On the west track, moving south. Q. "Do you find that such train stopped at Dempster street station of the defendant's road, and how far north of Greenleaf street was Dempster station? A. "Yes. About 1540 feet. Q. "Do you find, from the evidence, that the defendant's train that caused the injury was being run at its regular timecard rate of speed at the time of the injury? A. "Not at that point. Q. "What was the rate of speed between Dempster station. and South Evanston station, as fixed and directed by the timecard? A. "About thirty miles per hour. Q. "At a distance of 145 feet from the place of accident, at what distance could the deceased have seen the approaching train had he looked in that direction? A. "About 1687 feet, in ordinary circumstances. Q. "At a distance of 50 feet from the place of the accident, how far north could the deceased have seen the approaching train had he looked in that direction, and for the purpose of observing if a train was approaching? A. "About 1875 feet, under ordinary circumstances. Q. "At a distance of 20 feet from the place of accident, how far north was the approaching train that caused the injury, visible? A. "About 1875 feet, under ordinary circumstances. Q. "Is there any evidence that the deceased looked in the direction of the approaching train before attempting to cross the track upon which the accident occurred? A. "No. Q. "Could the deceased have seen the approaching train before attempting to cross the defendant's tracks had he exercised |