Brief for the Appellant.

Messrs. WALKER & EDDY, for the appellant:

When one track of a double track is obstructed at the crossing by either a stationary or a moving train, it is contributory negligence for a passenger to go upon the line without looking up and down the other line of rails. Patterson's Ry. Accident. Law, 172; Stubley v. Railway Co. L. R. (1 Ex.) 13; Scelton V. Railway Co. L. R. (26 P.) 631.

The walking upon a railroad track without looking in both directions to discover approaching engines or trains, when the exercise of such precaution would discover them, is negligence such as to preclude a recovery, unless the injury be willfully or wantonly inflicted by the railroad company. Austin v. Railroad Co. 91 Ill. 35; Railroad Co. v. Knutson, 69 id. 103.

The court erred in refusing defendant's instructions directing the attention of the jury to Mrs. Wilson's want of care in not looking for the approaching locomotive. It was her duty, under all circumstances, and especially with a train passing on a farther track, to ascertain, if she could, by carefully looking and listening, whether any train or locomotive was coming, before she continued on across. Railroad Co. v. Jacobs, 63 Ill. 178; Railroad Co. v. Lee, 68 id. 576; Hammer v. Railroad Co. 72 id. 347; Hetherington v. Railroad Co. 83 id. 510; Pennsylvania Co. v. Hankey, 93 id. 580; Railroad Co. v. Dewey, 26 id. 255; Railroad Co. v. Hazzard, id. 373; Railroad Co. v. Coultas, 67 id. 398; Railway Co. v. Coss, 73 id. 394; Railroad Co. v. Pondrom, 51 id. 333; Railway Co. v. Sweeney, 52 id. 325; Telegraph Co. v. Quinn, 56 id. 319; Railroad Co. v. Bell, 70 id. 102; Buckingham v. Fisher, id. 120; Dimick v. Railway Co. 80 id. 338; Railway Co. v. Byam, id. 528; Railroad Co. v. Harwood, id. 88; Railroad Co. v. Goddard, 72 id. 567; Railroad Co. v. Houck, id. 285; Railway Co. v. McGinnis, 71 id. 346.

The Supreme Court has uniformly held, that a person who knowingly goes upon a railroad track, regardless of the approaching trains thereon, is, as a matter of law, guilty of

Opinion of the Court.

gross negligence. Railway Co. v. Sweeney, 52 Ill. 325; Railroad Co. v. Van Patten, 64 id. 510; Railroad Co. v. Lee, 68 id. 576; Railroad Co. v. Bell, 70 id. 102; Railroad Co. v. Godfrey, 71 id. 500; Railroad Co. v. Goddard, 72 id. 567; Railway Co. v. Donahue, 75 id. 106; Railroad Co. v. Harwood, 80 id. 88.

Mr. FRANK A. JOHNSON, and Mr. WILLIAM BROWN, for the appellee.

Mr. JUSTICE BAILEY delivered the opinion of the Court:

These three suits grow out of the same disaster and involve substantially the same questions, and they will therefore be considered together. On the 4th day of August, 1887, Mrs. Sophia Wilson, while crossing one of the railway tracks of the Chicago, Milwaukee and St. Paul Railway Company at the intersection of Wood and Kinzie streets, Chicago, having one of her children, John C. Wilson, an infant about one year old, on her arm, and leading her other child, Murray F. Wilson, a boy about three years old, by the hand, was struck and severely injured by a locomotive engine belonging to said company passing on said track. Both of her children were at the same time run over by said engine and instantly killed. One of these suits was brought against said company by Mrs. Wilson to recover damages for her personal injuries thus received, and the two other suits were brought by John M. Wilson, the administrator of the estates of said children, to recover the damages resulting to their next of kin from their death. The trial of the suit brought by Mrs. Wilson resulted in a verdict and judgment in her favor for $5000. The trial of the two other suits also resulted in verdicts and judgments in favor of the administrator, the one brought to recover damages for the death of John C. Wilson in the sum of $2000, and the one brought to recover damages for the death of Murray F. Wilson in the sum of $1941.66. On appeal to the Appellate Court these judgments

Opinion of the Court.

were all affirmed, and the defendant now brings the records to this court by a further appeal.

The negligence charged in the several declarations is, the careless and improper management of said locomotive engine by the servants and employes of the defendant, the driving of said engine at a dangerous rate of speed without giving warning of its approach, the failure of the defendant to furnish at said crossing a sufficient, capable and diligent flagman, and that the flagman stationed by the defendant at said crossing carelessly and negligently omitted and neglected to give warning of the approach of said engine. The defendant, on the other hand, charged Mrs. Wilson with contributory negligence in failing to approach said crossing with suitable caution and circumspection.

The charge of negligence mainly relied upon by the plaintiffs at the trial was, the careless and negligent conduct of the watchman stationed at the crossing in failing to give warning of the approach of the engine, and upon this issue, as well as upon the question of Mrs. Wilson's contributory negligence, the evidence was conflicting, or was subject to such construction as the jury might think proper to give it. The question of negligence, at least in the form in which it is presented here, is purely a question of fact. In cases of this character, the decision of all questions of that character is committed by law to the jury, subject to revision by the trial judge, and subject to further revision by the Appellate Court on appeal. The judgment of the Appellate Court, however, is by statute made conclusive. After the judgment of the trial court has been affirmed by that tribunal, the law conclusively presumes that all questions of fact were properly disposed of by the jury, and the duty is not imposed upon us, nor are we given the power to consider such questions, or revise the action of subordinate tribunals in relation thereto.

Errors are assigned upon the refusal of the trial court to give to the jury certain instructions asked by the defendant. In

Opinion of the Court.

the suit in which Mrs. Wilson is plaintiff, this instruction was refused:

"The court charges the jury, that it is the duty of persons about to cross railroad tracks to use due care for their safety, by looking and listening for approaching trains or engines, and if arned by a flagman or passing train, it is their duty to wait before stepping upon the tracks, until the approaching engines or trains are passed."

This instruction contains a mere abstract proposition, and therefore it was not error to refuse it. But apart from that objection, it is erroneous in attempting to prescribe the specific conduct which, as a matter of law, is obligatory upon one about to cross a railway track. It is the duty of a person crossing a railway track, or approaching it with intent to cross, to exercise ordinary care and prudence to avoid injury, and what will constitute ordinary care in any given instance must depend upon the circumstances of the case. It can not usually be laid down as a rule of law, therefore, that in any given case, certain specific acts are essential to the exercise of ordinary care, or that the absence of such acts is negligence.

This same question, in substance, was fully discussed in T. H. & I. R. R. Co. v. Voelker, 129 Ill. 540, the question there being, whether a failure by a person about to cross a railway to look and listen for approaching trains could be pronounced negligence per se. In deciding this question in the negative we said: "It is doubtless a rule of law that a person approaching a railway crossing is bound, in doing so, to exercise such care, caution and circumspection to foresee danger and avoid injury as ordinary prudence would require, having in view all the known dangers of the situation, but precisely what such requirements would be, must manifestly differ with the evervarying circumstances under which such approach may be made." So here, the course which it would be the duty of a person "warned by a flagman or a passing train" to pursue, would depend upon the circumstances of the case, and would

Opinion of the Court.

present a question of fact and not of law. The law on this subject was given to the jury with substantial accuracy in the first instruction given at the instance of the defendant, which held it to be the duty of a person approaching a railroad crossing to exercise care, diligence and caution in looking and listening for approaching trains; that it is his imperative dut to exercise all reasonable care, and that his failure to exercise such care would be such neglect on his part as would preclude a recovery.

The reasons already stated are sufficient to justify the refusal of the following instruction which was asked by the defendant in Mrs. Wilson's case, and which the court refused to give :

"It is the duty of every person who is approaching and about to cross a railroad crossing, where there are several tracks crossing the street or highway, when there is a passing train upon one of them, to stop and wait for the train to pass, and to carefully look and listen for approaching trains or locomotives, before continuing on across the tracks. If you find from the evidence that the plaintiff, while waiting for the passing Northwestern train to go by, either stood or stepped upon the track upon which the accident occurred, without looking for the approaching locomotive, then the court instructs you that the plaintiff can not recover, and your verdict must be for the defendant."

It appears from the evidence that, at the place of the accident in question, a large number of railway tracks crossed Wood street, and among them were four main tracks running lengthwise of Kinzie street, of which the two northerly tracks belonged to the Chicago and Northwestern Railway Company, and the two southerly to the defendant. Mrs. Wilson approached the crossing from the south on Wood street, and as she was approaching the place where she received the injury, or at the instant she reached that point, a passenger train was passing in an easterly direction on the main track farthest