#### W. C. Norris Manufacturing, Inc., Appellee, v. Baltimore and Ohio Railroad Company, Appellant.

Term No. 4705.

*248Opinion filed January 26, 1948.

Released for publication February 26, 1948.

Murray & Murray, Kramer, Campbell, Costello & Wiechert and John C. Roberts, all of East St. Louis, for appellant.

William A. Miller and Alfred S. Pfaff, both of Salem, for appellee.

Mr. Presiding Justice Culbertson

delivered the opinion of the court.

This is an appeal from a judgment based on the verdict of a jury, for $1,800 and costs, in favor of *249W. C. Norris Manufacturing, Inc., appellee (hereinafter called plaintiff), and as against the Baltimore and Ohio Railroad Company, appellant (hereinafter called defendant).

The cause arises as the result of a collision between the defendant’s train and the truck belonging to plaintiff, in the City of Salem, Illinois, on November 24, 1944. The street upon which the truck was traveling was one of the main thoroughfares in the City of Salem and at the point of the crossing there were flasher lights, which were operating at the time and immediately prior to the occurrence of the collision. There was evidence to the effect that a brakeman, who was an employee of the defendant, was standing in the intersection giving signals to the engineer of a switch engine, and that such signals were interpreted by the driver of defendant’s truck and by other automobile drivers, as a signal to come across the intersection. There "was also evidence that an automobile had crossed the tracks directly ahead of the defendant’s truck, and that the view of the oncoming train was obscured. The brakeman stated that he gave a signal for the freight train to back and that he saw the defendant’s truck approaching the intersection at about fifteen miles per hour, and that he attempted to stop the truck, but that the driver did not heed, and that the brakeman had to get out of the way to prevent being run over. Other witnesses indicated-that the motioning by the brakeman was taken as an indication that traffic should come across the intersection. An approaching passenger train of the defendant ran into the truck of the plaintiff, causing the damage complained of. The driver of the truck was killed in the accident, but this action involves solely the damage to the truck belonging to the plaintiff.

Defendant seeks reversal on appeal of this cause principally upon the basis of the contention that the evidence did not show that the driver was in *250the exercise of due care and caution for the safety of the truck at the time of and immediately prior to the occurrence of the accident. The duty to use care is reciprocal between the railroad and a driver on the highway, and the precaution taken by a railroad ,at a crossing must be commensurate with the danger involved (Lauer v. Elgin, J. & E. R. Co., 305 Ill. App. 200).

Under the facts in this case the giving of misleading signals by the employee of the defendant to the approaching motorist was enough to prevent us from concluding that the driver of the truck was guilty of contributory negligence as a matter of law (Deheave v. Hines, 217 Ill. App. 427). The question of contributory negligence of one injured at a railroad crossing is one of fact for the jury (Chicago Junction R. Co. v. McGrath, 203 Ill. 511), and the manner in which a railroad discharges its duty to warn of the approach of trains is, likewise, a circumstance of fact for the consideration of the jury. The jury having determined the issues in favor of plaintiff, this court should not set aside such findings (Partridge v. Enterprise Transfer Co., 307 Ill. App. 386).

Complaint is made of certain instructions, one of which sought to instruct the jury that where a railroad train and a motor vehicle each approach a railroad crossing and each is aware of the approach of the other, it is the duty of the operator of the motor vehicle to stop and not attempt to pass in front of the advancing train. This instruction was properly refused under the evidence because it assumed that the driver of the truck was aware of the approach of the passenger train and there was no proof in the record to sustain that contention. The instruction leaves out of consideration the fact that the brakeman was at the crossing and may have misled the driver as to the danger.

Another instruction which defendant sought to have given to the jury was to the effect that if the flasher lights were operating and visible to the driver *251of the truck in time to permit him to have stopped in the exercise of ordinary care before reaching the crossing, then plaintiff could not recover. This instruction, was, likewise, properly refused for the reason that it also gave no consideration to the fact that the brakeman was at the crossing giving signals which were confusing and may have been taken as a signal to proceed across the crossing.

There being no reversible error in the record, the judgment of the circuit court of Marion county, Illinois, will be affirmed.

Judgment affirmed.

Bartley and Smith, JJ., concur.