215 Ill. 436 | Ill. | 1905
delivered the opinion of the court:
The first ground of reversal is stated by counsel for the appellant substantially as follows: At the time of the injury appellee.and Haggerty were not fellow-servants, but Haggerty was the servant of appellee; that both were guilty of contributory negligence, hence appellee is barred from recovery; that even though appellee was not. himself guilty of contributory negligence, Haggerty, as his servant, was negligent in throwing the end of the timber against the side of the car after the front of it had passed, and such contributory negligence on the part of Haggerty is a bar to appellee’s right to recover; that it was negligence to carry the timber on the track when it could have been taken down the sidewalk and thus avoided the danger; that by going into a hazardous place their degree of caution should have increased in proportion to the additional risk assumed; that these facts are proven by undisputed evidence, and the contributory negligence thus becomes a question of law for the court.
The question of contributory negligence is ordinarily a question of fact for the jury, and it only becomes a question of law where the undisputed evidence is so conclusive that the court could arrive at no other conclusion than that the injury was the result of the negligence of the party injured. (Beidler v. Branshaw 200 Ill. 425; Werk v. Illinois Steel Co. 154 id. 427; North Chicago Street Railroad Co. v. Cossar, 203 id. 608.) If there may be a difference of opinion on the question, so that reasonable minds will arrive at different conclusions, then .it is a question of fact for the jury. It appears from the facts above stated that there is an irreconcilable conflict in the evidence as to many of the material facts. There is a dispute as to the exact manner in which the accident happened, as to the exact position of the parties, as to the speed of the car, as to whether the bell was rung) as to the opportunity of the appellee to see the car approaching, and as to the opportunity of the motorman to see appellee and Haggerty on the track, and from such conflict we cannot say that reasonable minds could have arrived at but one conclusion as to the alleged contributory negligence of appellee and Haggerty. It was a question of fact, and not of law, and the court therefore properly refused to take the case from the jury.
Complaint is next made of the instructions given to the jury. It is contended that the modification of the sixteenth instruction given on behalf of appellant was error. It is as follows:
“If the jury believe, from the evidence, that ordinary care on the part of the plaintiff for his own safety required him, under all the facts and circumstances in evidence, before taking, if he did take, such a position that a part of, the timber which he was carrying would come in the course of the car, to look and ascertain whether or not a car was approaching; and if the jury further believe, from the evidence, that the plaintiff could or ivould by the exercise of ordinary care have looked and ascertained whether or not a car was approaching along said track; and if the jury further believe, from the evidence, that he did not so look and ascertain whether a car was so approaching, and that he was injured in consequence and because of his failure to so look and ascertain whether or not a car was so approaching, if he did so fail to look and ascertain, and'that he did not exercise ordinary care for his ozm safety just before and at the time of the accident complained of, and was injured by reason thereof, then the court instructs the jury to find the defendant not guilty.”
The modification complained of consisted in the addition of the italicized words as above. It is claimed by appellant that without the modification the instruction submitted to the jury whether ordinary care on the part of the plaintiff for his own safety required him to look and ascertain whether a car was approaching, and whether or not he could, by the exercise of ordinary care, have looked and ascertained the approach of the car, and whether or not he did look, and whether or not he was injured in consequence of his failure to look, and that by the modification the whole force of the instruction was destroyed, and the jury were told that although they might believe that ordinary care required him to look, and that he could have looked but omitted to do so, still such conduct did not amount to a failure to exercise ordinary care." We do not think the modification materially changed the meaning of the instruction. As given it was more favorable in its terms to the appellant than the facts would justify. There was no evidence in the record upon which it could be fairly based, the undisputed evidence being that appellee did look for a car before going on the track.
Complaint is further made of the ninth instruction given on behalf of the plaintiff. It informed the jury that while the burthen of proof is upon the plaintiff to prove his case by a preponderance of the evidence, still the proof need not be the direct evidence of persons who saw the occurrence, “but facts may also be proved by circumstantial evidence,— that is, by proof of circumstances, if any, such as to give rise to a reasonable inference in the minds of the jury based upon the proof of the truthfulness of the facts alleged and sought to be proved, provided such circumstances, together with all the other evidence bearing on such facts, constitute a preponderance of the evidence.” In attempting to define circumstantial evidence this instruction is awkwardly drawn, but we do not think the jury coúld have been misled by it to the injury of appellant.
It is next insisted that the court erred in giving the fourth and eighth instructions on behalf of appellee. These instructions told the jury that the plaintiff is not bound to prove his case beyond a reasonable doubt, but is only bound to prove it by a preponderance of the evidence, and if the jury find that the evidence bearing upon plaintiff’s case preponderates in his favor, although but slightly, it would be sufficient to justify a finding of the issues in his favor. It is insisted that the use of the term “plaintiff’s case,” and authorizing a verdict for plaintiff if he proves “his case,” was erroneous, for the reason that the words were not qualified by any reference to the allegations of the declaration. We do not regard the objection of substantial merit. (North Chicago Street Railroad Co. v. Polkey, 203 Ill. 225.) That part of the eighth instruction which tells the jury that if the appellee’s evidence preponderates in his favor, although but slightly, yet the verdict must be for appellee, is also criticised. We have held that such a statement in an instruction is not reversible error. Donley v. Dougherty, 174 Ill. 582.
Objection is urged to other instructions given on behalf of the plaintiff, but we are of the opinion that they were substantially correct, and that those given at the request of the defendant fully covered the law as to its defense. We do not deem it necessary to extend this opinion by commenting further upon those objected to. As we have frequently had occasion to remark in other cases, too many instructions were asked and given on either side.
The record shows that the court submitted to the jury special interrogatories to be answered by it, and that appellant had no opportunity to examine them before their submission. It is insisted that this was reversible error, and the case of Pittsburg, Cincinnati, Chicago and St. Louis Railway Co. v. Smith, 207 Ill. 486, is cited in support of the contention. In that case we fully considered the question as to special interrogatories being submitted by the trial court to counsel, and we there held that the proper practice was to submit the questions to both sides, but that such neglect did not necessarily constitute reversible error. Those submitted in the present case covered fully the question of the negligence of appellant and the contributory negligence of appellee. We are unable to see how appellant was prejudiced by the failure to submit them to counsel.
Upon a consideration of the whole case we have discovered no reversible error in the record, and the judgment of the Appellate Court will be affirmed.
Judgment affirmed.