delivered the opinion of the court:
If the acts of negligence, charged in the declaration against the Chicago, Burlington and Quincy Railroad Company alone, be eliminated, the acts of negligence, charged in the declaration against the plaintiff in error, are that it did not provide a suitable platform, or other means, for passengers to safely alight from its cars at Twenty-sixth street, and failed to keep its railroad at a safe and suitable distance from that of the Chicago, Burlington and Quincy Railroad Company, and also failed to "provide means for crossing the Chicago, Burlington and Quincy railroad in safety.
First—The first point, made by the plaintiff in error, is that the trial court erred in overruling its motion to take the case from the jury at the close of all the evidence, and in refusing to give its instruction, then asked and offered in writing, directing the jury to find it not guilty. This instruction was properly refused, if there was evidence tending to show the right of the defendant in error to a recovery, because in such case there must be a submission to the jury. (Landgraf v. Kuh,
The plaintiff in error contends, that there is no evidence, tending to show that, at the time of the injury, the defendant in error was in the exercise of ordinary care for his own safety. As we understand the argument of counsel upon this branch of the case, his contention is that defendant in error was gaiilty of negligence, as matter of law, upon two grounds. The first ground is the charge, that the defendant in error alighted from the car while it was in motion. In support of this position authorities are referred to holding, in substance, that it is negligence for a passenger to alight from a moving train of cars, the motive power of which is steam. (Cicero Street Railway Co. v. Meixner,
In the case at bar, there was evidence to the effect that, when the defendant in error alighted from the car on which he was riding, the train had stopped. There is other testimony, tending to show that, while the train had not actually stopped, it was moving very slowly. One of the witnesses testifies, that the train of the plaintiff in error, on which the defendant in error was riding, stopped about seven feet south of the Santa Pe tracks, so that there were seven feet clear between the front of the engine and the Santa Pe tracks; and, at the same time, he states that the train was about ten or fifteen or twenty feet south of the Santa Pe tracks when the defendant in error was struck. It follows, that the train moved a distance only of from three to thirteen feet northward before it stopped after defendant in error alighted from it. It must, therefore, have been moving very slowly. But whether he alighted from the train after it stopped, or while it was “slowing up” for the purpose of stopping, was a question of fact for the jury to determine. The judgment of the trial court, and the judgment of the Appellate Court affirming it, settle this question of fact, so far as we are concerned. The plaintiff in error asked no instruction from the court, holding that the alighting of the defendant in error from the train while it was in motion, if he did alight while it was in motion, constituted negligence in law. On the contrary, the plaintiff in error asked, and the court gave in its behalf an instruction to the following effect:
“If the jury believe from the evidence that the plaintiff left the car of the defendant Chicago Terminal Transfer Railroad Company while the same was in motion, and if they further believe from the evidence that he knew of the proximity of the tracks of the Chicago, Burlington and Quincy Railroad Company, they may take these facts into consideration in determining whether plaintiff was exercising due care and caution for his own safety.”
Inasmuch as the plaintiff in error asked and the court gave an instruction which left it to the jury to take into consideration the fact, if it was a fact, that the defendant in error alighted from the train while it was in motion in determining whether be was in the exercise of due care and caution for his own safety, it cannot be urged now and here bj^ the plaintiff in error, that such fact was negligence per se, or negligence as matter of law.
The second ground, upon which it is charged that defendant in error was guilty of a want of due care for his own safety, is that he did not stop, and look along the tracks of the Chicago, Burlington and Quincy Railroad Company, to see whether a train was approaching before he stepped upon one of the rails of the track of that company. The evidence is clear and positive that defendant in error did not see the approach of the train which struck him. The engineer and fireman of the train, from which he alighted, swear that they did not see the approach of the train, which struck him, until the train was upon him, or not more than six feet from him. The curve in the tracks at this point prevented a clear view of an approaching train on the parallel track. The defendant in error had not taken any position upon the track of the Chicago, Burlington and Quincy Railroad Company; he had merely put his foot upon the west rail of the track with a view to crossing to go to Twenty-sixth street, but, upon receiving a warning, he took his foot off the rail, and was standing in the space between the track of the plaintiff in error and the track of the Chicago, Burlington and Quincy Railroad Company when he was struck. The engine, or tender, or car, which struck him, projected over into the space between the two tracks about a foot and a half. This court has often decided, that the failure to look and listen before crossing a railroad track does not constitute negligence as a matter of law, but is merely a circumstance, which the jury may take into consideration in determining whether or not the party injured was guilty of negligence. (Chicago and Alton Railroad Co. v. Harrington,
This brings us to the second contention of the plaintiff in error upon this branch of the case, namely, that the evidence does not tend to show any negligence on its part, which resulted in injury to the defendant in error. We are of the opinion that there is evidence, tending to show such negligence. The law is well settled that the carrier must use the highest degree of care, which is practicable, in order to provide passengers with a safe passage from its trains. As is said by Mr. Bishop in his work on Non-contract Law, (sec. 1086): “The tracks around the platforms and places for entering and leaving the cars * * * should be made safe and kept so.” Here, it is admitted that there was a regular statutory-stopping place at Twenty-sixth street, where the train, upon which the defendant in error was riding, stopped. But there was no depot or platform either on the east or west side of the train. Passengers, who alighted from the train, were obliged to step upon the ground into a space between five and seven inches below the level of the tracks, not boarded but filled with stone and sand, not wider than four, five or six feet, located between the tracks of two railroad companies, and subject to being narrowed still further by the projection of cars for a distance of a foot and a half over such space upon each side thereof. We are not prepared to say that, in view of the character of the place, where passengers were thus obliged and invited by the plaintiff in error to alig'ht for the purpose of approaching Twenty-sixth street, there was such a safe means of departure from its trains, as plaintiff in error was bound, under the law, to furnish to its passengers. Upon this subject the jury were properly instructed by the court on behalf of. both parties. The court instructed the jury, on behalf of the defendant in error, that a railroad company in the business of carrying passengers is bound to exercise due care, consistent with the nature of its business and practical operation of its railroad, in providing a safe and convenient mode of access to its trains and departure from its trains at stations or stopping places, used by it as places for taking on and discharging passengers from its trains. The court also instructed the jury, in behalf of plaintiff in error, and at its request, that, if they believed from the evidence that the defendant in error paid his fare to the conductor of the plaintiff in error for a passage from Fifty-first street to Twenty-sixth street, then it became the duty of the plaintiff in error to carry him to its usual place of stopping nearest Twenty-sixth street, and to furnish him with a safe place to alight from the train, and a safe passageway from such place of alighting to Twenty-sixth street. These instructions were in harmony with the authorities hereinbefore referred to.
Second—It is alleged by the plaintiff in error, in the second place, that defendant in error was not a passenger of the plaintiff in error at the time the accident occurred. Counsel for plaintiff in error does not state in what way the question thus presented arises; but, while it is true that it is a question of law what facts will create the contract relation of carrier and passenger, yet it is the duty of the court to give a proper instruction, informing the jury what facts will be sufficient evidence of the contract, when the existence of such relation is in controversy. (Chicago and Eastern Illinois Railroad Co. v. Jennings,
The juxtaposition of the tracks rendered it dangerous to stand or walk between them while trains were passing, and, hence, the failure to provide a proper place for alighting contributed to the injury, even though the immediate and direct cause of the injury was the blow from the engine of the Chicago, Burlington and Quincy Railroad Company. The fact, that defendant in error was struck by an engine of the Chicago, Burlington and Quincy Railroad Company, does not absolve plaintiff in error, inasmuch as its negligent conduct caused the defendant in error to be placed in a position where he would be so struck. There may be several substantive causes of an accident, but, if one which is proximately connected with it is proven, it is sufficient. Proximate cause in law is a cause, from which a man of ordinary experience and sagacity can foresee that the result may probably follow. (American Express Co. v. Risley,
Third—The third point, insisted upon by the plaintiff in error, is that the first instruction given in behalf of the defendant in error is erroneous. By that instruction the court told the jury that, if the plaintiff had proven “all the material allegations of his declaration by a preponderance of the evidence, in manner and form as he has alleged them in his declaration, he is entitled to recover in this case.” The objection to the instruction is, that it leaves it to the jury to determine what allegations of the declaration are material. In Toledo, St. Louis and Kansas City Railroad Co. v. Bailey,
The judgment of the Appellate Court is affirmed.
Judgment affirmed.