This action was brought by John Zoffinger, against the Lake Erie and Western Railway Company, to recover for personal injuries sustained by plaintiff, caused by a train of cars defendant was moving over the track of the Indianapolis, Bloomington and Western railroad, in the city of Bloomington. On the trial plaintiff recovered a judgment for $3500, on which the circuit court rendered judgment against defendant. That judgment was affirmed, on appeal, in the Appellate Court, and defendant brings the case to this court on its further appeal.

After'a careful consideration of the entire record, no tangible ground is perceived on which a reversal of the judgment in this ease can be based. There was a direct conflict in the testimony touching almost every material fact in the case; but the jury found the issues in favor of plaintiff, and that implies a finding of every fact the evidence tends to establish in favor of plaintiff that was necessary to sustain the action. The Appellate Court, by its judgment of affirmance, having found the facts the same way, its findings are, of course, conclusive on this court, under the statute.

There is evidence tending to show plaintiff was struck by the cars being moved by defendant, at or on the crossing of Howard street; that the train was being run at ah unusual rate of speed; that no bell was rung or whistle sounded ; that there was no light on the forward car that struck plaintiff, and that plaintiff was observing due care for his safety. As there w'as some evidence tending to establish these facts the jury must have so found, and the affirmance of the judgment in the Appellate Court implies a finding of the facts the same way. Conceding the facts to be as they must have been found, a clear ease is made in favor of plaintiff, where' a recovery is fully justified.

The evidence admitted which it is insisted was improperly allowed, is of too trifling a character to be made the ground of a reversal of a judgment where the facts are as the jury must have found them. It could not in the slightest degree affect the defence sought to be made, and defendant was not in the least prejudiced by its admission. There was no error in excluding what the bar-keeper may have said to plaintiff when he called for something to drink at his counter. No principle is suggested on which such declarations are admissible. All that was sought to be proved was, whether plaintiff was then under the influence of intoxicants. The remark made by the witness was not proper to show that fact. If that was his condition, it was subject to proof as any other fact in the case. What the witness said to him was not proper to show his condition.

But two instructions were given for plaintiff. Neither of them contains any bad law. So far as they assume to state the law, it is formulated with sufficient accuracy. On the other hand a great number of instructions,—fifteen in all,— were given for defendant, which state every conceivable principle of law defendant deemed applicable to the facts of the case. There can be no just ground for complaint on account of instructions given at the trial. Indeed, the charges given were very favorable to the defence defendant was endeavoring to make.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.