#### The Illinois Central R. R. Co. v. John F. Byrne.

1. Evidence—Province of Jury Where it is Conflicting.—Where the . evidence is conflicting upon the vital question of fact tried, it is the province of the jury to determine where the truth lies.

Assumpsit.—Appeal from the Circuit Court of McLean County; the Hon. George W. Patton, Judge presiding. Heard in this court at the May term, 1902.

Affirmed.

Opinion filed November 1, 1902.

Charles L. Capen, attorney for appellant; J. GL Drennan, of counsel.

A. E. DeMange, attorney for appellee.

Opinion per Curiam :

This case was before us at a former term and a statement thereof appears in 78 Ill. App. 204.

*97After it was remanded to the Circuit Court it was again tried by jury and resulted as before in a verdict and judgment in favor of the appellee, but the damages were assessed at $100 less.

The errors alleged upon this second appeal are many, and an elaborate brief and argument for the appellant is submitted in support thereof, but a careful examination of the record has convinced us that the rulings of the trial court on the admission and rejection of evidence and the instructions to the jury were all substantially correct.

The remarks of the trial judge complained of were not calculated to prejudice the appellant before the jury and hence do not constitute reversible error.

The .evidence now in the record is substantially as it was when the case was before us heretofore, and being conflicting upon the vital questions of fact tried, it was the province of the jury to determine where the truth was, and we are unable to find in the record any substantial reason appearing which indicates that they made a mistake, and therefore the judgment-will be affirmed.