delivered the opinion of the Court:
This is an action on the case, brought under the statute, by Louisa Schmidt, as administratrix of Frederick Schmidt, her late husband, against the city of Chicago, to recover damages for his death, which is alleged to have been caused by a defective sidewalk, which the city, after notice, negligently suffered to remain out of repair. There was a trial upon the merits in the circuit court of Cook county, resulting in a verdict and judgment for the plaintiff for $3500, which was affirmed on appeal to the Appellate Court, and the case is now before us for review.
It is a conceded fact that the deceased was killed by a passing train of 'the Northwestern Railroad Company, and the company was originally joined as a co-defendant with the plaintiff in error. The accident resulting in Schmidt’s death occurred on the 5th of May, 1873,■ and the cause was first tried in March, 1875, resulting in a verdict for the defendants. On appeal to this court by defendant in error the case was reversed, and the cause remanded for further proceedings. (See 83 Ill. 405, where the case is reported.) There was another trial of the cause in March, 1878, with the same result, and on appeal to the Appellate Court the judgment of the circuit court was again reversed. After the second reversal the action was dismissed as to the railway company, and a third trial was had in February, 1880, result*190ing in a verdict against the city for $5000. For some cause or other this verdict was set aside, and in April following, the case was submitted to another jury, Which resulted in a mistrial, the jury being unable to agree. In January, 1882, the cause was submitted to a jury for the fifth time, with the result already stated. It will be thus seen, as between the present parties there has been one mis-trial, and two verdicts for defendants in error,—the first for $5000, and the last $3500. In the light of these facts, if no imperative rule of law forbids, we think the maxim, clebet esse finis litiim, may well be applied.
This case, as the record fully shows, was earnestly and vigorously contested in the court below, on issues of fact. Bach party entertained and propounded to the court and jury distinct and opposing theories as to how the accident occurred. For the defendant in error it was contended, that Schmidt, the deceased, while passing along on the sidewalk within a few feet of the track of the Northwestern Railway Company, and while in the exercise of due care,, stepped into a hole in the sidewalk, of which the city had notice, and was thereby unavoidably thrown upon the railway track of said company, and that in attempting to get up his clothing caught upon a spike or nail in the sidewalk, and before he was able to extricate himself and get off the track he was struck and killed by a passing train. The other theory is, that Schmidt was hurrying along to cross the railway track in front of a passing train, and in doing so came in collision with a boy, which momentarily detained him, and to make up the lost time occasioned by the collision, he jumped off the sidewalk and attempted to run around the front of the engine of the moving train, and thus make the crossing, and in doing so was struck by the cow-catcher, and killed. There was evidence tending to estab-. lish both these theories, and it was for the jury to determine which of the two, if either, was the correct one. This they have done, and their finding has received the indorse*191ment and approval of the Appellate Court, and this must he accepted as conclusive of the'controversy, so far as it depends on the facts.
Assuming the hypothesis of the plaintiff below to be true as above stated, there was a clear right of recovery, and the first instruction, which is mostly complained of, does nothing more than so inform the jury, and we see no substantial objection to it. The learned counsel for plaintiff in error, if we correctly understand him, seems to suppose that the general doctrine often recognized by this court, which holds an instruction vicious that attempts to summarize the facts or elements in a cause essential to a recovery, but fails in some important particular, applies to an instruction which merely fails, as was the case here, to embody in it the evidence tending to establish a distinct antagonistic theory. That such is not the case is too palpable to admit of serious discussion. In most, if not all, cases of conflicting testimony, there are two or more distinct opposing theories, supported, more or less, by the evidence, and the very object of instructions is, to present to the jury these several distinct views, with the conclusions of law pertaining to them, respectively, and any attempt to embody in one instruction all the hypothetical elements contained in the distinct and necessarily opposing views, would make the veriest nonsense. All the law requires is, that an instruction based upon some particular hypothesis warranted by the evidence, which undertakes to summarize the elements in the cause essential to a recovery upon that theory, must not omit any essential matter.
There is some criticism of other instructions, but we do not think it well founded. On the whole, we are of opinion the law of the case was properly laid down by the court, and that there is no material error in the record for which the judgment should be reversed.
Judgment affirmed.