#### The People of the State of Illinois for use of Ernest Dalton, Appellant, v. Chicago & Alton Railway Company, Appellee.

Gen. No. 5,883.

(Not to he reported in full.)

Appeal from the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding.

Heard in this court at the October term, 1913.

Reversed and remanded.

Opinion filed April 15, 1914.

Statement of the Case.

Action "by the People of the State of Illinois for the nse of Ernest Dalton against Chicago & Alton Railway Company to recover penalties for the obstruction of highways in the city of Pontiac by defendant under paragraph 77, ch. 114 of the Illinois statutes, J. & A. ¶ 8826. The suit was originally brought before a justice of the peace. A judgment was rendered in the justice court and an appeal taken to the Circuit Court, where the jury found four violations of the statute and fined the Company ten dollars for each violation. From a judgment entered on the verdict, plaintiff appeals.

A. C. Norton and Lyle M. Shelly, for appellant.

C. C. & L. F. Strawn, for appellee.

Abstract of the Decision.

1. Railroads, § 468 * —when instruction on right of railroad to obstruct public highway erroneous. In an action against a railroad company to recover penalties for obstructing public highways in violation of paragraph 77, ch. 114, R. S., J. & A. Ü 8826, an instruction modified by the court so as to announce as the law that the railroad company could occupy a highway crossing with its cars or trains for ten minutes for any purpose, held not to state the law.

*

See Illinois Notes Digest, Vois. XI to XV and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Whitney

delivered the opinion of the court.

*2422. Railboads, § 468 * —when instruction on preponderance of evidence in suit for obstructing highway not erroneous. In an action against a railroad company to recover a penalty for obstructing a public highway with its cars, the giving of an instruction to find the defendant guilty on a clear preponderance of the evidence held not error, for the reason that the instruction included the word “clear” before preponderance.

3. Railboads, § 468 * —when instruction as to amount of penalty for obstructing public highway erroneous. In an action against a railroad company for obstructing a public highway with its cars, an instruction telling the jury that it was their duty to fix the same penalty for each violation of the statute that they found from the evidence existed, held erroneous.

4. Appeal and error, § 1535 * —when instruction to consider certain evidence harmless. The giving of an instruction telling the jury that it was their duty to consider certain evidence pointed out in the instruction, held not reversible error, although it would have been better to have said in the instruction, “You have the right and it is your duty to consider such evidence in connection with all other evidence in the case.”