199 Ill. 569 | Ill. | 1902
delivered the opinion of the court:
The court, at the request of the defendant, gave to the jury this instruction:
“The court instructs the jury that the defendant company is not bound by law to fence its depot or station grounds, and if you believe, from the evidence, that the accident in question occurred upon the depot or station grounds of the defendant company at Kasbeer, Illinois, then, even if you should believe, from the evidence, that the cattle in question strayed upon such depot grounds because of the lack of fences and cattle-guards, yet the defendant company cannot be made liable because of its failure to fence such depot or station grounds, and on that issue you should find for the defendant.”
Whether this was a correct instruction or not is not before us for decision, for the reason that appellee has not assigned cross-errors; (Illinois Masons’ Benevolent Society v. Baldwin, 86 Ill. 479; Stowell v. Spencer, 190 id. 453;) but its practical effect was to dispose of the issue on the first four counts of the declaration so far as that trial was concerned, for the evidence was practically undisputed that the accident occurred on the station grounds, and the jury so found in answer to a special interrogatory submitted by the defendant. The verdict could then have been rendered only upon one or more of the remaining three counts,—that is, upon allegations that the defendant was guilty of negligence in not having a turn-table upon which to turn the engine at the end of the branch line, so that it might run forward, and not backward, on the return trip, and in failing to have a proper headlight and a pilot or cow-catcher in front of the train as it was drawn by the engine running backward. Such being the issue, it became important to determine, in view of the evidence, whether the deceased had not assumed the risks incident to this manner of running the train. The evidence shows that he had been employed as brakeman by appéllant about two years and on this branch line upwards of two months, and had been so employed on the branch line at his own request; that he had frequently worked as brakeman on the train when it was run in the manner now complained of. The jury found, in answer to special interrogatories, that he knew, at and before he made the trip upon which the accident happened, that there was no turn-table or other appliance at Walnut by which to turn the engine so that it might run forward on the return trip, and that he knew there was no headlight or pilot or cow-catcher on the front end of the train as it was then and had theretofore been running when returning from Walnut. Such being the state of the case and the facts being as set out in the preceding statement, the most important question remaining was, whether or not Camper, the deceased, had assumed the risk of the injury which he received. Indeed, a plausible argument is made by appellant’s counsel upon the error alleged that the trial court refused to instruct the jury, at the close of all of the evidence, to find the defendant not guilty; but however close the case may have been on the evidence, the question was one of fact for the jury to determine,—that is, whether the risk was assumed by the deceased or not. It was, however, of vital importance to a fair consideration of the case that the jury should be properly and carefully instructed. The defendant asked, but the court refused to give, the following instruction:
3. “The jury are further instructed, as a matter of law, that an employee of a railroad company cannot recover for an injury suffered, in the course of the business about which he is employed, from defective machinery used therein, or from dangerous condition of the track or improper manner of running and operating a train, after he has knowledge of such dangerous conditions and continues his work without objection; and in this case, if you believe, from the evidence, that Brakeman Camper knew that there was no turn-table at Walnut, that the engine must back up on return trips, and that there was no regular headlight upon the engine in question and that there was no pilot upon the tender of such engine, and that he continued in such employment with knowledge of such conditions, without objection, then he assumed the hazards incident to such conditions, and if the injuries in question resulted from any of said conditions, plaintiff cannot recover on those issues and your verdict should be for the defendant.”
True, the court gave, at the request of the defendant, another instruction, namely:
“The jury are instructed, as a matter of law, that a servant, when he enters the services of an employer, impliedly agrees that he will assume all risks which are ordinarily and naturally incident to the particular service in which he engages; and if the jury believe, from the evidence, that the injury to the plaintiff was only the result of one of the risks ordinarily incident to the work in which plaintiff’s intestate was engaged, and not otherwise, then he cannot recover in this case, and your verdict should be for the defendant.”
But this instruction was mainly abstract and wholly general in its character, and did not, as the other would have done, direct the attention of the jury to the real issue on which their verdict would have to be based, and to the evidence under that issue. We are of the opinion that the defendant was entitled to have said instruction numbered 8 given to the jury, and that it was prejudicial error to refuse it.
At the time of the accident, while passing through the station grounds at Kasbeer, Camper was riding in the cab of the engine, and it was a question whether he was guilty of contributory negligence in being away from his post of duty when he was injured. This interrogatory was submitted to the jury: “Was it the duty of Robert Camper, deceased, when approaching and passing through the town of Kasbeer, to be on top of his train?” and the jury answered, “No.” The evidence shows that it was his duty, as forward brakeman, in approaching and passing through stations, to be on top of the train and that the rules of the company so required. Unless the jury made a distinction between “the town of Kasbeer” and “a station,” we are unable to find any evidence in the record to support their answer to this interrogatory. But even had the jury found that he was not at his post of duty when he was killed, but was in the cab of the engine, as the evidence shows he was, the plaintiff would not have been precluded unless the absence of Camper from his post of duty and presence in the cab contributed to the injury. Whether it did or not was a question for the jury, but when they answered “No” to the interrogatory, the question whether he contributed to the injury by his own negligence in the respect mentioned would logically receive the same answer. But as the case must be reversed for error in refusing" the instruction mentioned and must be submitted to another jury, we deem it unnecessary to consider further the ■question raised by counsel on the overruling by the court ■of their several motions respecting the answers of the jury to this and other special interrogatories.
The judgments of the Appellate and circuit courts are reversed and the cause is remanded to the circuit court.
Reversed and remanded.
