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Opinion filed December 22, 1897Rehearing denied February 3, 1898.

171 9 114a 2159 114a 2161

1. NEGLIGENCE-not negligence per se for person to attempt to cross track ahead of approaching train. Although an act of imprudence, it is not negligence per se in every case, as a matter of law, for a person to attempt to cross a railroad track in front of an approaching train when the crossing gates are down.

2. DAMAGES-right of adult children to recover damages for negligent killing of parent. In an action against a railroad company for the negligent killing of a woman, proof that her next of kin are adult children wiil not raise a presumption of pecuniary loss to them from her death; but where there is evidence tending to prove that they derived a benefit from her life, the pecuniary value of that benefit must be left to the jury.

3. SAME-whether damages allowed by jury are excessive is a question for the Appellate Court. Whether the damages awarded by the jury, under the evidence, are excessive is a question to be determined by the Appellate Court.

Chicago & West. Ind. R. R. Co. v. Ptucek, 62 Ill. App. 375, affirmed.

APPEAL from the Appellate Court for the First District;-heard in that court on appeal from the Superior Court of Cook county; the Hon. NATHANIEL C. SEARS, Judge, presiding.

W. O. JOHNSON, E. A. BANCROFT, (STIRLEN & KING, of counsel,) for appellant:

If the conduct of the party whose duty it is to use due care is so clearly negligent that all reasonable minds would so pronounce it without hesitation or dissent, then the court may so pronounce it by instructions to the jury. Beach on Cont. Neg. 454; Cooley on Torts, 650.

Negligence may become a question of law where, from the facts admitted or conclusively proved, there is no reasonable chance of different reasonable minds reaching different conclusions. Negligence may also become a question of law when it appears that a single material fact is conclusively shown or uncontradicted, the existence of which is conclusive of a right of recovery. Railway Co. v. Brown, 152 Ill. 484.

The right of next of kin to recover for the death of their intestate, produced by the negligent or wrongful act of another, is a purely statutory right, and the extent of this right is to be determined by the terms of the act which created it. This act confines the right of recovery by the next of kin to pecuniary loss, and all other ele. ments of loss must be excluded. The question is resolved

to a matter of actual computation of the dollars and cents • which the kinsman loses by reason of the death of his

intestate. Armour v. Czischki, 59 Ill. App. 17; Railroad Co. v. Brodie, 156 Ill. 317.

JONES & LUSK, for appellee:

Negligence and due care, and degrees and comparison of negligence, are questions of fact for the determination of a jury, and with that determination neither the theory nor the history of trial by jury warrants any interference

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by the court, unless it is apparent the jury disregarded their duty. Railroad Co. v. Wilson, 35 Ill. App. 346.

When proof is made of the age and relationship of the deceased to next of kin the jury may estimate the pecuniary damages from the facts proven, in connection with their own knowledge and experience in relation to matters of common observation. Chicago v. Hesing, 83 I11. 204.

Mr. JUSTICE WILKIN delivered the opinion of the court:

This action was by appellee, as administrator of the estate of Rosalie Pruka, against appellant, for negligently causing the death of his intestate. He obtained judgment in the trial court for $3000 and costs of suit, and that judgment was affirmed in the Appellate Court.

The principal question discussed and decided in the Appellate Court was whether or not the damages were excessive. That, together with all other controverted questions of fact, being settled there, it only remains for us to determine whether any of the errors of law assigned upon the record were committed by the trial court.

Upon the trial appellant asked the court to instruct the jury that if, at the time plaintiff's intestate came to the railroad crossing at which she was killed, the gates were down, and she disregarded that fact and went upon the crossing, endeavoring to cross over the tracks in front of an approaching engine, plaintiff could not recover. But the court modified it by adding after the words“approaching train," "and that in so doing she was guilty of lack of ordinary care," and this modification is assigned for error. It is not denied that the question as to whether certain acts amount to negligence is, as a general rule, one of fact, but it is contended that in this case the acts mentioned in the offered instruction are such acts of negligence as leave no reasonable ground for doubt in the conclusion of reasonable minds, and therefore the court erred in refusing to submit it to the jury as a matter of law. In support of this position the case of Hoehn v. Chicago, Peoria and

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