sion which might have caused them not to observe or note the fact that the signal was given, etc. All implications suggested by these and other questions of like character that might be mentioned were negatived by the simple statement that, in the opinion of the witnesses, if the signal had been given, they would have heard it. Moreover, the competency of testimony of this kind is distinctly recognized by this court in Railroad Co. v. Siltman, 88 Ill. 531.

PLAINTIFF'S

FORMER TRIALS.

It is next complained that the court erred in permitting counsel for plaintiff, in his opening statement and concluding argument, to the jury, to refer to the number of trials there had been REFERENCES BY in the case, and how they had resuited, and also to COUNSEL TO state that the judgment on the first hearing in the appellate court had been reversed upon a mere technicality. What is here complained of we do not think, even conceding it to be improper, about which we express no opinion, is of so serious a character as to justify a reversal of the judgment. Trial courts are given a large discretion in matters of this kind, with which courts of review are loth to interfere, unless it becomes necessary to prevent a failure of justice. Such is not the case here. The court gave to the jury three instructions on behalf of the plaintiff, all of which were excepted to by the defendant. The objection to the first is that it is singularly confusing." HIGHWAY CROSS- The greater portion of it is a mere statement of what BELL the statute requires of railroad companies, when crossing public highways, and the remaining portion simply tells the jury that, if they find from the evidence that the place of the accident was at a public highway crossing, then it was the duty of the defendant to ring the bell or sound the whistle, as required by the statute. In other words the court told the jury what the statute enjoined, and then instructed them that it was the duty of the defendant to obey it, if shown by the evidence to be within its provisions. We perceive nothing in this that the most hypercritical could object to.

ING DUTY ΤΟ

RING
STATUTE.

Plaintiff's second instruction is also complained of. It tells the jury "that it was the duty of the defendant to use reasonable care and diligence to prevent injury to the plaintiff; and if the jury believed from the evidence that the defendant failed to perform such duty, by reason whereof the plaintiff, while exercising reasonable care on his part, received the injury complained of, then the defendant is liable. The substance of the objection to this instruction, as we understand it, is that it authorized the jury to find the defendant guilty upon proof of any actionable negligence causing the injury, whether charged in the declaration or not. We regard this as a strained hypercritical view of the subject. Instructions should always be construed in the light of the issues being tried and the proofs offered in support of them. When thus construed, we find no objection to the instruction in question.

HIGH

WAY-ACTION

BASED ON STAT

UTE-COMMON

LAW RIGHTS.

It is finally urged, with great persistence, that the avenue in question is not, within the meaning of our statute, a public highway, and that, as the action is based exclusively on the statute, the failure to ring a bell or sound the whistle PUBLIC was violative of no duty which it imposes, and hence no cause of action is shown. We do not concur in this view. It is to be observed, in the first place, this is not a statutory action to recover the penalty which the statute prescribes for a failure to give such a signal. If it were, quite a different question would be presented. The present is a common-law action, brought for the failure to perform a duty imposed by law. Under the facts disclosed by the record, we do not think it essential to the maintenance of the action that this duty should necessarily arise under the statute, notwithstanding the pleader may possibly have so regarded it in framing the declaration. Without regard to the statute, it is the duty of those having charge of trains to give notice of their approach at all points of known or reasonably apprehended danger. This is almost universally done by the ringing of a bell or sounding of the whistle, and frequently both. In exceptional cases, where the highest degree of care is deemed advisable, flaging is resorted to. That these duties are enjoined by the common law is not disputed, but the claim is, as already seen, that the action is brought upon the statute, and that the plaintiff, therefore, cannot avail himself of his common-law rights, although the averments in the declaration are otherwise broad enough for such purpose. This, as we view it, is an entire misapprehension of the whole matter. As before indicated, the action is not brought on the statute, nor does it purport to be. While there are certain expressions in that part of the declaration which attempts to define the duty of the defendant, justifying the inference that the pleader had the statute in his mind, yet there is really nothing in it that can properly be called even a reference to the statute. Even the expressions referred to as showing the drift of the pleader's thoughts are entirely superfluous and uncalled for, and may therefore be treated as surplusage. As mere matter of composition, tending to perspicuity, such averments are admissible, and even commendable, if not misleading.

The act in question is a public statute of which the courts will take judicial notice. 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 them forth in the declaration than it is to plead a provision of the common law having a like application to the case, and all concede that is never necessary. 1 Chit. Pl. 215. The only exception to this general rule now remembered 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 words of reference to the statute. Here the relief given by the common law is alone sought; hence the exception to the general rule just adverted to has no application. Of course, a different rule prevails in the case of private statutes. Even if the declaration in this case contained a direct reference to the statute, and it was evident that the pleader expected to rely exclusively upon it, still it would not, in our opinion, present an insuperable obstacle to a recovery on cominon-law grounds, if the allegations otherwise were sufficiently broad and the evidence warranted it. In a note to Oliv. Prec. 528, where this subject is under discussion, we find the following: "So, also, where the action is sustainable at common law, and the declaration concludes against the statute cr statutes," etc., and the statutes have been misquoted or incor rectly referred to, or there is no statute in fact in relation to the subject, those words in the declaration shall be rejected as surplusage, and the action shall be maintained at common law. See Galt, 212; Com. Dig. "Action upon Statute," c. The general principle here announced fully answers the contention of appellant. judgment will be affirmed.

The

Evidence as to Signals at Crossings.-Positive outweighs negative evidence as to the giving and non-giving of signals. Bohan v. Milwaukee, etc., R. Co., 61 Wis. 391; s. c., 19 Am. & Eng. R. R. Cas. 276; Chicago, etc., R. Co. v. Robinson, 106 Ill. 142; s. c., 13 Am. & Eng. R. R. Cas. 620; 19 Am. & Eng. R. R. Cas. 396; Sutherland v. N. Y., etc., R. Co., 14 Hun. (N. Y.) 484; Culhane v. N. Y., etc., R. Co., 60 N. Y. 133; McGrath v. N. Y., etc., R. Co., 63 N. Y. 522; Telfer v. Northern R. Co. 30 N. J. L. 188; Savannah, etc., R. Co. v. Shearer, 58 Ala. 672; Chicago, etc., R. Co. v. Still, 19 Ill. 499, s. c., 71 Am. Dec. 236; Ellis v. Gt. West. R. Co., L. R. 9 C. P. 551,-but where the witnesses, who did not hear the signals, were paying attention to see if the signals were given, and could have heard them if they had been, the doctrine just stated is not applicable, and the question of the relative weight of the evidence is for the jury. Bunting v. Cent. Pac. R. Co., 16 Nev. 277; 6 s. c., Am. & Eng. R. R. Cas. 282; Louisville, etc., R. Co. v. Shires, 108 Ill. 617; s. c., 19 Am. & Eng. R. R. Cas. 387; Urbauck v. Chicago, etc., R. Co., 47 Wis. 59; Berg v. Chicago, etc., R. Co., 50 Wis. 419; s. c., 2 Am. & Eng. R. R. Cas. 70; Chicago, etc., R. Co. v. Dickson, 88 Ill. 431; Dublin, etc., R. Co. v. Slattery, L. R. 3 App. Cas. 1115; Voak v. Northern Cent. R. Co., 75 N. Y. 320; Renwick v. New York Cent. R. Co. 36 N. Y. 132.

Effect of Failure to give Statutory Signal at Crossing. The general subject of the violation of statutory duties as affecting the liability of a railroad company is discussed in the note on page 447, 31 Am. & Eng. R. R. Cas.; see, also, note upon the liability of railroad company for failure to give statutory signals at crossings, 19 Am. & Eng. R. R. Cas. 20.

Where a traveller near a crossing has notice of the approach of a train, a failure to give the statutory signals is not negligence to him. Pagalinsky v. N. Y. Cent., etc., R. Co., 82 N. Y. 424; s. c., 2 Am. & Eng. R. R. Cas. 251; Houston & Texas Cent. R. Co. v. Nixon, 52 Tex. 19; yet the duty to give statutory signals on approaching a highway crossing is a positive duty, and to disregard it is negligence; Chicago, etc., R. Co. v. Bogs, 101 Ind. 522; s. c., 23 Am. &. Eng. R. R. Cas. 282; Cincinnati, etc., R. Co. v. Butler, 103Ind. 31; s. c., 23 Am. & Eng. R. R. Cas. 262; Pittsburgh, etc., R. Co. v.

Martin, 82 Ind. 476; s. c., 8 Am. & Eng. R. R. Cas. 253; Zimmerman v. Hannible, etc., R. Co., 71 Mo. 476; s. c., 2 Am. & Eng. R. R. Cas. 191; Atlanta, etc., R. Co. v. Wyly, 65 Ga. 120; s. c., 8 Am. & Eng. R. R. Cas. 262; Leavenworth, etc., R. Co. v. Rice, 10 Kan. 426; Faber v. St. Paul, etc., R. Co., 29 Minn. 465; s. c., 8 Am. & Eng. R. R. Cas. 277; Bitner v. Utah Cent. R. Co., 11 Pac. Rep. 629.

66

But it is not such negligence as will warrant a recovery unless it appears that the signals might have prevented the injury. Toledo, etc., R. Co. v. Jones, 76 Ill. 311; Chicago, etc., R. Co. v. Harwood, 90 Ill. 425; Parker v. Wilmington, etc., R. Co., 86 N. C. 221; s. c., 8 Am. & Eng. R. R. Cas. 420. It is not a compliance with the statute or the exercise of ordinary care, to give the signals and at the same time, by careless acts or omissions, render them unavailing as warnings of danger. Chicago, etc., R. Co. v. Boggs, 101 Ind. 522; s. c., 23 Am. & Eng. R. R. Cas. 282. But a failure to give the statutory signals will not excuse contributory negligence on the part of the traveller. The doctrine has been declared by this court, and reaffirmed, that a traveller approaching a railroad track is bound to use his eyes and ears, so far as there is an opportunity, and when, by the use of those senses, danger may be avoided, notwithstanding the neglect of the railroad servants, to give signals, the omission of the plaintiff to use his senses, and avoid the danger, is concurring negligence entitling the defendant to a non-suit." Gorton v. Erie R. Co., 45 N. Y. 664; Briggs v. N. Y. Cent., etc., R. Co., 72 N. Y. 26; Shaw v. Jewett, 86 N. Y. 616; s. c., 6 Am. & Eng. R. R. Cas. 111; Artz v. Chicago, etc., R. Co., 34 Ia. 153; 38 Ia. 293; 44 Ia. 284; Baltimore, etc., R. Co. v. State, 29 Md. 252; Stoneman v. Atlantic, etc., R. Co., 58 Mo. 503; Zimmerman v. Hannibal, etc., R. Co., 71 Mo. 476; s. c., 2 Am. & Eng. R. R. Cas. 191; Cleveland, etc., R. Co. v. Elliott, 28 Ohio St. 340; Dodge v. Burlington, etc., R. Co., 34 Ia. 276, Meeks v. Southern Pac. R. Co., 52 Cal. 602; 56 Cal. 513; s. c., 8 Am. & Eng. R. R. Cas. 314.

A railroad company is not bound to give statutory signals for highways when approaching a switch-crossing on its own ground, but it may be negligence in fact for it not to give some warning. Hodges v. St. Louis, etc., R. Co., 17 Mo. 50; s. c., 2. Am. & Eng. R. R. Cas. 190. Statutory signals are, in some jurisdictions, only necessary at lawfully established public highways. Cordell v. N. Y. Cent. R. Co., 64 N. Y. 535. Statutes requiring signals by bell or whistle, do not require the use of both. Terry v. St. Louis, etc., R. Co. (Mo. 1887), 2 S. W. Rep. 746; Chicago, etc., R. Co. v. Damerell, 81 Ill. 450. And where statutory signals are given at the proper place before the crossing is reached, and kept up until the crossing is passed, the statutory duty is fully performed. Chicago, etc., R. Co. v. Dougherty, 110 Ill. 521; s. c., 19 Am. & Eng. R. R. Cas. 292; Zimmerman v. Hannibal, etc., R. Co., 71 Mo. 476; s. c., 2 Am. & Eng. R. R. Cas. 191.

A traveller has a right to assume that a railroad company will thus perform its statutory duty. The citizen who on a public highway approaches a railway track, and can neither see nor hear any indications of a moving train, is not chargeable with negligence for assuming that there is no car sufficiently near to make the crossing dangerous. He has a right to assume, that in handling their cars the railroad company will act with appropriate care, that the usual signals of approach will be reasonably given, and that the managers of the train will be attentive and vigilant." Kennayde v. Pac. R. Co., 45 Mo. 255; Donahue v. St. Louis, etc., R. Co. (Mo. 1886), 28 Am. & Eng. R. R. Cas. 673; Petty v. Hannibal, etc., R. Co. (Mo. 1886), 28 Am. & Eng. R. R. Cas. 618; Newson v. N. Y. Cent. R. Co., 29 N. Y. 390; Earnst v. Hudson River R. Co., 35 N.Y. 9; s. c., 90 Am. Dec. 761; and note, Wabash, etc., R. Co. v. Cent. Trust Co., 23 Fed. Rep. 738; Pittsburgh, etc., R. Co. v. Martin, 82 Ind. 476, 482; Philadelphia, etc., R. Co. v. Hagan, 47 Pa. St. 244, s. c., 86 Am. & Eng. Dec. 541; Patterson's R. Ac. Law, 173, § 180. But in doing

so he must, nevertheless, vigilantly use his senses of sight and hearing. "The court told the jury that the plaintiff had a right to assume that the defendant would do his duty and ring a bell. It is claimed that this was erroneous. When that portion of the charge was excepted to, the court supplemented it by saying to the jury that the plaintiff, though he might make that assumption, was not relieved thereby from the duty on his part, to vigilantly use his senses to avoid danger. The charge as thus restricted, is sustainable upon the authority of this court." Folger, J., in Shaw v. Jewett, 86 N. Y. 616; s. c., 6 Am. & Eng. R. R. Cas. 111, citing Voak v. N. Y. 451; Terry v. Jewett, 78 N. Y. 338.

Statutory provisions requiring signals are in the nature of police regulations. West. Un. R. Co. v. Fulton, 64 Ill. 271; Tiedeman Lim. Police Power, 599; and in some instances are of such character that the only liability for a failure to observe them is in the nature of a penalty. Chicago, etc., R. Co. v. McDaniels, 63 Ill. 122. The requirements of such statutes are mandatory, and the court should not leave it to the jury to say what signals are necessary. Havens v. Erie R. Co., 53 Barb. (N. Y.) 328; Semel v. N. Y., etc., R. Co., 9 Daly (N.Y.), 321. For a failure to give the signals a railroad company may be indicted. Commonwealth v. Boston, etc., R. Co., 133 Mass. 383; s. c., 8 Am. & Eng. R. R. Cas. 297, and note collecting many authorities. But their omission is excusable when the ordinances of a particular municipality forbid them in its limits. Penna Co. v. Hensil, 70 Ind. 569; s. c., 6 Am. & Eng. R. R. Cas. 79; s. c., 6 Am. Rep. 188.

It is not for the legislature to prescribe the standard of ordinary care. Consequently, when signals or warnings required by statute are insufficient to give notice of a danger, other and additional signals of warnings will be necessary. A railroad company neglecting reasonable precautions besides ringing bell, as required by statute, to avoid collision with a vehicle at a highway crossing, is liable for an injury resulting from such neglect, and it is for the jury to judge as to whether or not such additional precautions have been neglected. Linfield v. Old Colony R. Co., 10 Cush. (Mass.) 562; s. c., 57 Am. Dec. 124, and note; Zimmerman v. N. Y. Cent. R. Co., 66 N. Y. 601; s. c., 7 Hun (N. Y.), 552; Weber v. N. Y., etc., R. Co., 58 N. Y. 451; Indianapolis, etc., R. Co. v. Stables, 62 Ill. 313.

The statutory requirements represent the minimum of care exacted of the company, Richardson v. N.Y. Cent. R. Co., 45 N.Y. 846; Bradley v. Boston, etc., R. Co., 2 Cush. (Mass.) 539; Barry v. N. Y. Cent. R. Co., 92 N. Y., 289; 8. c., 13 Am. & Eng. R. R. Cas. 615; Eaton v. Fitchburg, etc., R. Co., 129 Mass. 364; s. c., 2 Ăm. & Eng. R. R. Cas. 183. But there are cases that apparently support contrary doctrines. See article on "Crossings," 4 Am. & Eng. Encyclo. of Law 923.