delivered the opinion of the court.
Doyle v. Chicago City Railway Co., 189 Ill. App. 438 (1914)
Nov. 10, 1914
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Illinois Appellate Court
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Gen. No. 19,810
189 Ill. App. 438
James Arthur Doyle, Appellee, v. Chicago City Railway Company, Appellant.
Gen. No. 19,810.
(Not to be reported in full.)
Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding. Heard in" the Branch Appellate Court at the October term, 1913.
Reversed and remanded.
Opinion filed November 10, 1914.
Statement of the Case.
Action by James Arthur Doyle, a minor, by his next friend, against Chicago City Railway Co. for personal injuries sustained by plaintiff by being struck by one of defendant’s street cars. Plaintiff recovered a judgment against defendant for four thousand dollars and costs. To reverse the judgment, defendant appeals.
Defendant urged as ground for reversal that the *439verdict was against the weight of the evidence and excessive and that the court erred in giving for plaintiff the following instruction:
“The court instructs you that you are the judges of the credibility of the various witnesses who have testified in the case and of the weight you will give to the testimony of each. In doing this you may take into consideration the interest such witnesses may have in the result of the suit, if any; the relation of the witnesses testifying for either the plaintiff or defendant in that suit; any motive or inducement that may appear from the evidence in the case, if any does appear, that may influence such witness to testify falsely; the opportunities of the several witnesses for knowing the things about which they testify; the reasonableness or unreasonableness of the story told; its probability or improbability; its corroboration or want of corroboration by other credible testimony in the case; the appearance and demeanor of the witnesses while testifying; and from these and from all the facts and circumstances shown by the evidence in the case you are to decide how much weight you will give to the testimony of each witness who has testified in the case. The jury in determining the preponderance of the evidence as to a disputed point in the case are not to determine it alone by the number of witnesses testifying upon the one side or the other of such point, but are also to consider the credibility of the witnesses under the rule laid down above.”
Defendant’s objection to the instruction was that the plaintiff’s case rested very .largely upon his own testimony; that as to the most material of the disputed points, his testimony was contradicted by his two and defendant’s witnesses, and that more witnesses testified for defendant than for the plaintiff, and that when an instruction attempts to define, preponderance of the evidence and then gives an enumeration of matters proper to be considered by the jury but omits the num*440ber of witnesses testifying for and against, it is reversible error.
Abstract of the Decision.
Instructions, § 89*—when instruction as to preponderance of evidence prejudicial. The giving of an instruction with reference to determination of the preponderance of the evidence as to a disputed point in the case, which gave an enumeration of matters proper to be considered but omitted the element of the number of witnesses testifying for or against, held reversible error.
Watson J. Ferry, for appellant; Leonard A. Busby, Warner H. Robinson and Franklin B. Hussey, of counsel.
Darrow & Baily, for appellee.