#### Wabash Railroad Company v. Philip Warren.

1. Instructions—must not be ambiguous. The refusal of instructions proper in substance is not error where in form they are ambiguous.

2. Admission of evidence—when error in, will not reverse. The erroneous admission of evidence will not reverse where it does not appear that prejudice resulted.

Action on the case. Appeal from the County Court of Sangamon County; the Hon. George B. Watkins, Judge, presiding. Heard in this court at the May term, 1905.

Affirmed.

Opinion filed March 20, 1906.

C. N. Travous, for appellant.

Henry L. Child, for appellee; Blufoed Wilson and Philip Barton Warren, of counsel.

Per Curiam.

This cause was before this court at the November term, 1903. The material facts and questions of law involved are stated in the opinion then rendered. 113 Ill. App., 112.

A third trial by jury resulted in a verdict and judgment in favor of the plaintiff, to reverse which the defendant again appeals. The evidence upon the question as to whether the horses were killed upon the public highway or upon appellant’s right of way was, as upon the former trial, exceedingly close. There is, however, sufficient evidence in the record to *417sustain the verdict and since three juries have found the same way as to the facts, we do not feel warranted in disturbing the same.

It is urged that the court erred in refusing defendant’s first instruction. While the instruction might well have been given, inasmuch as it is somewhat ambiguous we cannot say that its refusal constituted error. Furthermore the jury "were fairly instructed upon the points sought to be covered by the same.

It is further urged that the court erred in admitting testimony as to the location of the right of way as originally laid out. While this was error we are satisfied that the jury were in no way influenced or prejudiced thereby, and that their verdict would have been the same had the testimony in question been excluded.

The attorney’s fees allowed seem under the evidence to be reasonable, and were properly allowable under the statute.

The judgment will therefore be affirmed.

Affirmed.