58 Ill. App. 17 | Ill. App. Ct. | 1895
delivered the opinion of the Court.
We are of the opinion that the evidence establishes appellant’s negligence, as averred in said first count, and the resulting injury to appellee as charged. Notwithstanding there was evidence tending to show the driver was careful and competent, yet the uncontradicted facts proven, that the driver stopped the team near a mill, from which the noise of escaping steam or of a steam whistle might frighten the horses, and failed to retain possession of the lines or adopt any means to control them or prevent them from running off while he was engaged in closing the windows, furnish reasonable grounds justifying the jury in finding that the driver was careless and incompetent, and guilty of culpable negligence. It was the duty of appellant, as a carrier of passengers, to furnish a driver competent, skillful and careful; Tuller v. Talbot, 23 Ill. 357; 2d Wait’s Act. & Defen., pp. 63, 64, 65, 68, 69; and to use that care, vigilance and foresight under the circumstances, and in view of the service undertaken, and the mode of conveyance adopted, as would reasonably guard against and prevent accidents and consequent injury to passengers, and slight neglect or want of care in this regard, creates liability to respond in damages for the injuries thereby occasioned. Same authorities above cited and Frink v. Potter, 17 Ill. 410.
The second contention, that appellee was a gratuitous passenger and had no right of action, is untenable. She was received and accepted by the driver, defendant’s agent, to be carried as a passenger, and defendant was paid. The fact that she paid nothing does not defeat her right of action. 2 Wait’s Ac. & Defen., 64 and 65. The alleged contributory negligence of defendant in jumping out of the carriage was a question for the jury to settle, and we do not feel at liberty, in view of the circumstances, to set aside their verdict upon the ground she was guilty of such contributory negligence as barred her right to recover. An instinctive effort to escape sudden impending danger, resulting from the negligence of another, does not relieve the latter from liability. The law does not require a delay in the efforts to escape until the exact nature and measure of the danger is ascertained. 2 Wait’s Act. & Defen., 75. Frink v. Potter, supra. Some of the instructions for the plaintiff were not strictly accurate, but all the instructions given, taken as a series, informed the jury correctly as to the law except that one given for defendant required plaintiff to prove every allegation of the declaration in order to recover. The court did not err in refusing to give the refused instructions or in modifying those modified. The judgment is affirmed.
