Green, J.
Appellee brought this suit against appellant to recover damages for personal injuries received by her on the approach of appellant’s bridge. The negligence charged in plaintiff’s declaration is, in substance, the failure to provide a guard rail, balustrade or other barrier between the footway used by pedestrians crossing upon the bridge and the roadway provided and used for the passage of teams, wagons and live stock over the bridge; and in the third count it is averred that by reason of the absence of such guards, rails or bannisters it became and was the duty of defendant, in the exercise of ordinary care, to make and enforce such rules and regulations for the passage of animals and live stock across said bridge as would reasonably protect and secure persons crossing the bridge on foot from injury from such animals and live stock while being driven across the bridge; charges neglect of this duty, and it is averred in each count that by reason of the negligence of the defendant as charged therein, a drove of loose mules, permitted by defendant to be driven across said bridge, ran against and upon plaintiff, and pressed and squeezed her so violently against the north railing of the approach as to greatly bruise and injure her, and thereby her nervous system was greatly shocked and permanently injured and her spine permanently injured, her right eye hurt, etc. The trial resulted in a verdict for the plaintiff for §1,800 damages, and defendant appealed. The first point suggested on behalf of appellant is, that the verdict is against the evidence. It is not denied that appellee paid her fare for crossing said bridge from St. Louis to East St. Louis and had proceeded on foot, upon the footway provided, as far as midway of the north approach at the east end of the bridge, at a point twenty-five feet above the ground; that a drove of not less than twenty-five mules, which had passed her, became frightened at a locomotive, turned and ran back, one at least running into the footway where she then stood; that the south approach was closed for repairs; that there was no rail or other barrier between, the roadway and footway on the north approach to prevent the mules from crossing into the footway where appellee stood. In addition to the uncontradicted facts, appellee testified she was returning from St. Louis to her home in East St. Louis, across the bridge; that she paid her fare for crossing, and while on the footway, about the middle of said north approach, a drove of mules that had just passed her going down the approach, became frightened and stampeded and turned and ran up the approach toward her, and three or four of them crossed into the footway, where she stood clinging to the outside railing, ran against her and squeezed and crushed her against the railing, and thereby her side and back were injured, her eyesight became impaired and her kidneys were affected; that she remained at timesunconscious during three or four days after the accident and was confined to her bed for two weeks by reason of her injuries; that her health had been bad since the accident and she had been unable to do her housework; that she had been healthy and her eyesight was good before her injury. The testimony of the physician attending her tended to strongly corroborate her statement touching her condition and injuries, and he further testified her injury would permanently affect her nervous system. A consulting physician, who examined her shortly after the accident, concurred with the attending physician in his diagnosis and also corroborated appellee in material points as to the character and consequences of her injury.
Dr. Perryman testified he knew the plaintiff; that from her statement on the stand and the testimony of her physician, his opinion was that she had concussion of the spinal cord and of the back; that if the concussion of the spinal cord is serious it may be permanent; if slight it may pass away in a short time, but it is liable to leave behind it a train of nervous disorders that may lead to serious troubles afterward. Two boarders in plaintiff’s "house, who saw her every day, corroborate her as to her condition on the evening of her injury, and for three or four days thereafter, and as to the time she was confined to her bed, and testify to the fact that she had repeated spells of prostration and sickness thereafter, and before her injury was a strong, healthy woman. Two ladies testified also and corroborated plaintiff in material points, and the girl who worked for plaintiff testified substantially as the two boarders did. As against this evidence, Bogue, who was one hundred yards from plaintiff when the mules stampeded and came back, testified he saw them run back up the approach and saw them pass plaintiff; did not think they ran into or against her. 'Galvin, a bus driver, who was also about one hundred yards from place where plaintiff stood, and who was on his omnibus driving west when the mules stampeded, testified he saw the mules run past her, but they did not touch her Each of these witnesses admitted one of the mules, at least, got over into the footway. Toung, a bridge watchman, testified he was on the turn roadway that goes down under the bridge to the levee, and Bogue called his attention and informed him the mules had stampeded and there was a lady on the approach; that he went up to plaintiff and as far as he could see she was conscious; she might have been unconscious; if she was he could not see it; she said she was frightened; said she was subject to heart disease and expected to go home and be sick for two weeks; did not claim that the mules ran against her; he walked with her down the approach. Dr. Kohl heard plaintiff’s testimony and that of the physicians on her behalf and did not agree with them that plaintiff had suffered concussion of the spine and gave his reasons for his opinion. It was the province of the jury to settle this conflicting testimony and give the weight and credit £o the evidence introduced on behalf of each party, which they believed it was entitled to. Doubtless they took’into consideration the distance Bogue and Galvin were from plaintiff, the means and opportunity each had to see and know whether plaintiff was run into by the mules as she claimed, also her mental and physical condition immediately afterward and continuing for so long a time, referable to no other apparent cause than the injury received in the manner she described, and reached the conclusion they were mistaken and she was not. The jury saw and heard all the witnesses while testifying and had means thus furnished them, which we have not, to determine correctly the credibility of each and the weight their testimony was entitled to.
We think, after carefully examining the record in this case, the evidence justified the jury in finding that appellee was seriously and permanently injured by the frightened mules running against her and pressing her against the outside railing, where she had retreated to avoid them and save herself from injury; that she was in the exercise of all reasonable care for her own safety when injured, and the negligence of defendant in failing to provide reasonably safe and secure barriers to prevent live stock from crossing into the footway, or, in the absence of such barriers, failing to establish and enforce rules for securing and controlling live stock while being driven across the bridge, occasioned the injury and damage to plaintiff.
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Green, J.
Appellee brought this suit against appellant to recover damages for personal injuries received by her on the approach of appellant’s bridge. The negligence charged in plaintiff’s declaration is, in substance, the failure to provide a guard rail, balustrade or other barrier between the footway used by pedestrians crossing upon the bridge and the roadway provided and used for the passage of teams, wagons and live stock over the bridge; and in the third count it is averred that by reason of the absence of such guards, rails or bannisters it became and was the duty of defendant, in the exercise of ordinary care, to make and enforce such rules and regulations for the passage of animals and live stock across said bridge as would reasonably protect and secure persons crossing the bridge on foot from injury from such animals and live stock while being driven across the bridge; charges neglect of this duty, and it is averred in each count that by reason of the negligence of the defendant as charged therein, a drove of loose mules, permitted by defendant to be driven across said bridge, ran against and upon plaintiff, and pressed and squeezed her so violently against the north railing of the approach as to greatly bruise and injure her, and thereby her nervous system was greatly shocked and permanently injured and her spine permanently injured, her right eye hurt, etc. The trial resulted in a verdict for the plaintiff for §1,800 damages, and defendant appealed. The first point suggested on behalf of appellant is, that the verdict is against the evidence. It is not denied that appellee paid her fare for crossing said bridge from St. Louis to East St. Louis and had proceeded on foot, upon the footway provided, as far as midway of the north approach at the east end of the bridge, at a point twenty-five feet above the ground; that a drove of not less than twenty-five mules, which had passed her, became frightened at a locomotive, turned and ran back, one at least running into the footway where she then stood; that the south approach was closed for repairs; that there was no rail or other barrier between, the roadway and footway on the north approach to prevent the mules from crossing into the footway where appellee stood. In addition to the uncontradicted facts, appellee testified she was returning from St. Louis to her home in East St. Louis, across the bridge; that she paid her fare for crossing, and while on the footway, about the middle of said north approach, a drove of mules that had just passed her going down the approach, became frightened and stampeded and turned and ran up the approach toward her, and three or four of them crossed into the footway, where she stood clinging to the outside railing, ran against her and squeezed and crushed her against the railing, and thereby her side and back were injured, her eyesight became impaired and her kidneys were affected; that she remained at timesunconscious during three or four days after the accident and was confined to her bed for two weeks by reason of her injuries; that her health had been bad since the accident and she had been unable to do her housework; that she had been healthy and her eyesight was good before her injury. The testimony of the physician attending her tended to strongly corroborate her statement touching her condition and injuries, and he further testified her injury would permanently affect her nervous system. A consulting physician, who examined her shortly after the accident, concurred with the attending physician in his diagnosis and also corroborated appellee in material points as to the character and consequences of her injury.
Dr. Perryman testified he knew the plaintiff; that from her statement on the stand and the testimony of her physician, his opinion was that she had concussion of the spinal cord and of the back; that if the concussion of the spinal cord is serious it may be permanent; if slight it may pass away in a short time, but it is liable to leave behind it a train of nervous disorders that may lead to serious troubles afterward. Two boarders in plaintiff’s "house, who saw her every day, corroborate her as to her condition on the evening of her injury, and for three or four days thereafter, and as to the time she was confined to her bed, and testify to the fact that she had repeated spells of prostration and sickness thereafter, and before her injury was a strong, healthy woman. Two ladies testified also and corroborated plaintiff in material points, and the girl who worked for plaintiff testified substantially as the two boarders did. As against this evidence, Bogue, who was one hundred yards from plaintiff when the mules stampeded and came back, testified he saw them run back up the approach and saw them pass plaintiff; did not think they ran into or against her. 'Galvin, a bus driver, who was also about one hundred yards from place where plaintiff stood, and who was on his omnibus driving west when the mules stampeded, testified he saw the mules run past her, but they did not touch her Each of these witnesses admitted one of the mules, at least, got over into the footway. Toung, a bridge watchman, testified he was on the turn roadway that goes down under the bridge to the levee, and Bogue called his attention and informed him the mules had stampeded and there was a lady on the approach; that he went up to plaintiff and as far as he could see she was conscious; she might have been unconscious; if she was he could not see it; she said she was frightened; said she was subject to heart disease and expected to go home and be sick for two weeks; did not claim that the mules ran against her; he walked with her down the approach. Dr. Kohl heard plaintiff’s testimony and that of the physicians on her behalf and did not agree with them that plaintiff had suffered concussion of the spine and gave his reasons for his opinion. It was the province of the jury to settle this conflicting testimony and give the weight and credit £o the evidence introduced on behalf of each party, which they believed it was entitled to. Doubtless they took’into consideration the distance Bogue and Galvin were from plaintiff, the means and opportunity each had to see and know whether plaintiff was run into by the mules as she claimed, also her mental and physical condition immediately afterward and continuing for so long a time, referable to no other apparent cause than the injury received in the manner she described, and reached the conclusion they were mistaken and she was not. The jury saw and heard all the witnesses while testifying and had means thus furnished them, which we have not, to determine correctly the credibility of each and the weight their testimony was entitled to.
We think, after carefully examining the record in this case, the evidence justified the jury in finding that appellee was seriously and permanently injured by the frightened mules running against her and pressing her against the outside railing, where she had retreated to avoid them and save herself from injury; that she was in the exercise of all reasonable care for her own safety when injured, and the negligence of defendant in failing to provide reasonably safe and secure barriers to prevent live stock from crossing into the footway, or, in the absence of such barriers, failing to establish and enforce rules for securing and controlling live stock while being driven across the bridge, occasioned the injury and damage to plaintiff. It is next insisted the trial court erred in denying this motion on behalf of the defendant: “ How comes the defendant and moves the court for a rule upon the plaintiff to submit to an examination of her person by medical experts for the purpose of hearing the evidence on the trial of the cause as to the extent or the permanency of the injury she claims to have received.” This motion names no persons as medical experts nor does it ask the court to name and appoint the medical experts; but aside from this the necessity for such examination does not appear. It is not suggested in the affidavit filed in support of the motion that such examination is required in order to more fully ascertain the extent and probable duration of the injury; nor does it appear there is reason to believe plaintiff feigned or simulated injuries. The only external evidence of injury was a bump or swelling on the back, which yielded to the remedies used and disappeared in a short time, and the change in the appearance of the pupils of the eyes, claimed to have taken place after the injury. We do not deem this error well assigned. Galesburg v. Benedict, 22 Ill. App. 114; Parker v. Enslow, 102 Ill. 272.
It is next insisted the injury was caused by want of care on the part of the persons in charge of the mules, and the negligence of defendant in failing to provide reasonably safe and sufficient railing or other barrier between the roadway and footway to protect pedestrians, was not the proximate cause of plaintiff’s injury, hence defendant is not liable to her. This contention is not tenable under the rule announced in Village of Carterville v. Cook, 129 Ill. 152.
The fourth point suggested is, that plaintiff knew the approaches were not properly constructed, by reason of having no high railing between the footpath and roadway, and that therefore it was dangerous for foot-passengers; that this was a manifest danger, known to her, because she had crossed the bridge many times, and this known danger she could have avoided by using a street car or ferry boat, or a stair-case at the approach, which plaintiff testified she knew nothing of. Ho accident occurred to plaintiff, or to any one else to her knowledge, except the one in question here, by reason of the absence of the rail or barrier. The bridge company invited foot-passengers to use this footway by keeping it open for their use. It took toll of plaintiff, who was a foot-passenger; she had a right to rely on their legal obligation to use reasonable care in protecting her from injury while crossing the bridge, or respond in damages for injury occasioned by failure to perform such duty. The use by plaintiff of the footway upon the approach, under the facts disclosed by the record, was not contributory negligence on her part in bringing about her injury, or absolving defendant from liability, Fifth point is, that the want of a railing separating the sidewalk from the roadway is not negligence per se. It is not necessary to an affirmance of this judgment that we should hold such omission negligence per se. The question before the jury- was, whether, under all the facts and circumstances proven, it was negligence, creating liability, for defendant in this case to omit the erection of such railing. The jury evidently found it was, and the proof justified the finding. The last point suggested is the giving certain instructions for plaintiff, and refusing to give certain instructions requested on behalf of defendant. The ruling of the Circuit Court in this regard is assigned for error. An examination of the evidence and all the instructions given and refused, leads us to the conclusion that the jury were fully and fairly instructed by the court, and that the refused instructions ought not to have been given.
JNo error requiring the reversal of the judgment appearing to us, it is affirmed.
Judgment affirmed.