delivered the opinion of the court:
Onе of the errors assigned for the reversal of this judgment is the refusal of the trial court to instruct the jury, at the close of the plaintiff’s evidence, to find for the defendant, and the refusal of the court to give a like instruction that, as a matter of law, the plaintiff had failed to make out his case, which was asked at the close of the argument.
It is urged that the еvidence of plaintiff did not warrant the jury in finding that the injury of plaintiff was the result of defendant’s negligence, as charged in the declaration, and also that the evidence of plaintiff establishes that he was not, at the time of his injury, in the exercise of reasonable care and caution. Both of these matters are ordinarily questions of fact, to be determined in the trial and Appellate Courts. As this court has frequently held, it is not our province to determine or pass upon such questions, further than to ascertain whether or not there was, at the close of plaintiff’s case, evidence tending to prove the facts alleged in the declaration, and whether, at the close of all the tеstimony, when the motion to instruct for defendant was refused, the evidence, with all the inferences which the jury can justifiably draw from it, was insufficient to support a verdict for plaintiff, and that if one was returned it must be set aside. Lake Shore and Michigan Southern Railway Co. v. Richards,
Two elements alleged in t'he declaration, and necessary to be established by plaintiff before he could recover, were negligence of the defendant as charged, and that the plaintiff was in the exercise of due care and caution for his own safety. It is not the province of this court to say whether these facts are proven. The evidence before the trial court and jury tended to show that plaintiff, on August 10,1891, was on Madison street, in Ohicago, about two blocks east of Desplaines avenue. He was walking* east on the north side of Madison street, intending to board an east-bound car on defendant’s line. When a car approached and was distant one hundred and fifty or two hundred feet, plaintiff, still being on the sidewalk on the north side of the street, signaled to the motorman by throwing up his hand. He then proceeded diagonally to the middle of the street, and continued walking eastwardly in the space between the two street сar tracks. The next street crossing east of him was Thomas street. He continued between the two tracks some twenty-five feet east of this crossing, when the car overtook him. Plaintiff contends that before the car reached him he had seen the motorman turn the brake, so that when he attempted to get on the car had slacked down to а speed of about four or five miles an hour. He was still on the left hand or the north side of the track, and desired to get on the front platform. As the car went by he caught the hand rails on each side of the front platform, when he says the speed of the car was suddenly accelerated, and he lost his hold, was dragged some forty feet or more/ and thrown under the. wheels and his left hand crushed off. The material parts of plaintiff’s testimony, as above set forth, were corroborated by two spectators who witnessed the occurrence,—one from the street and the other from an adjoining yard not far distant. Many of these facts were contradicted by the motorman and four passengers оn the front platform, who testified that the car was running at a speed of seven or eight miles an hour when it reached plaintiff, and that the speed had not been decreased for the reason that no signal was seen, and that the speed was not accelerated, but, on the contrary, the current was turned off and the brake applied as soon as plaintiff attempted to get on. It was contended and testified to by these witnesses that plaintiff had his back turned to the car while walking, and as the car approached and overtook him he attempted to catch it with both hands; that the motorman at once attempted to stop the car, and did so within a space of thirty-fivе or forty feet. Some passengers in the car also testified that there was no decrease in speed until after the accident occurred.
In the discussion of the question as to whether the court erred in refusing to instruct the jury to find for defendant, only the facts as presented and shown by plaintiff’s evidence will be considered.
The serious results of the injury to plaintiff are not disputed. He was a cabinet maker, and his skill as such depended on the use of both his hands. We have examined the record with the utmost care to ascertain if this judgment is by it sustained. Negligence is ordinarily a question of fact for the jury. In Wabash Railway Co. v. Brown,
This court has held in a number of cases that it is negligence for a passenger to get off a train, of which the motive power is steam, while the cars are in motion. (Illinois Central Railroad Co. v. Lutz,
The rule as applicable to steam railways is relaxed when applied to horse cars or street railways. (Terre Haute, etc. Railroad Co. v. Buck,
The doctrine is established in nearly all of the States where the question has arisеn, that it is not negligence per se for a passenger to board or alight from a street car operated by horse power, and the question of contributory negligence is one of fact for the jury. (McDonough v. Metropolitan Railway Co.
In large and populous cities, where cars are constantly-receiving and discharging passengers at crossings, it is a well known fact that many of such passengers board cars and alight therefrom before such cаrs have come to a full stop, and that they do so usually with perfect safety. It is well known, also, that street car companies tacitly invite many passengers to board and alight from their cars by checking up to a slow rate of speed, and immediately starting up at a greater speed when the passenger is safely aboard or has alightеd. It would be impossible for a court to lay down the rule as to what particular rate of speed would be sufficient notice to a passenger that if he attempted to get on or off he would be held guilty of contributory negligence. It would also be a great hardship, and unjust, to lay down a general rule that a passenger attempting to board a street car while in motion at all should be held in contributory negligence. Every person is supposed to know that the boarding of a moving train or car is attended with the danger of a mis-step or fall, and a fall beside a moving car is liable to bring some part of the body or limbs in danger of being crushed. It is the duty of those having control and management of cаrs designated for traffic on the public streets, to bring such cars to a full stop at such places as are convenient and necessary for the purpose of discharging and receiving passengers, and it is no less the duty of passengers, in gétting on or off such cars, to observe due precaution for their own safety. We cannot say, however, that it is inconsistent with ordinary care and caution for a person to board a street car while in motion. Whether one has not exercised due care or caution in so doing is to be determined by the particular circumstances in each case, and is therefore a question of fact, to be submitted to the jury.
The cases heretoforе cited, in which it has been held that it is not negligence per se for a person to board or alight from a street car while in motion, have reference, in a great degree, to horse cars. Where such motive power is used the act is not in itself negligence, while in the case of cars propelled by steam the act is held to be negligеnce. Where the motive power is electricity, a question not entirely free from difficulty is presented. The modern progress in methods of transportation, the recent discoveries of the possibilities of electricity as a motive power, and the perfection which it has within a few years developed and attained, have demonstrated a power popular as a method of transit. The purposes to which a power of this character is applied must, to some extent, be considered. Electricity has now in a great measure superseded horse power. The same style of cars, and often the same cars, are used, the same streets are traversed, and a like number of stops, and in like places, are made to receive and deliver passengers. Electricity as a motive power, while stronger and more powerful, and with possibilities of a greater speed, is at the same time more nearly under the control of -the person in; charge than horse power. The strict rule in force regarding the negligence of a person alighting or boarding an ordinary train of steam cars had for it many good and sufficient reasons which are not applicable to the electric car as in general use. In the latter case, stops, are frequent and opportunity for great speed is not presented; steps for passengers are near the ground, and the chances of a mis-step or fall are not so great as in steam cars as constructed; streets on such lines are generally paved, and in that respect passengers may as safely depart or board such cars in one place as another, whereas in the case of steam cars plаtforms are generally provided. While 'in electric cars the possibilities of speed are greater than in the case of horse cars, yet the general operation and management of such cars so nearly approach that of horse cars that it must be held that the same rule of law which in the cases cited and a long linе of other cases holds that it is not negligence per se to board or depart from such cars while in motion, is also ' applicable to electric cars.
It follows, therefore, from this application of the rule, that in the case at bar it was solely a question of fact as to whether or not there was negligence ,in the acts оf the defendant or contributory negligence on the part of the plaintiff. There was evidence tending to prove the facts alleged in the declaration, and it was not error in the trial court to refuse the general instruction asked. It was proper for the court to submit the question to the jury.
It is also urged as error that the trial court refused cеrtain instructions which should have been given, and modified certain other instructions which should have been given to the jury as asked, and that such modification was error. Sixteen instructions were asked on behalf of the defendant below, nine of which were given. Too much space would be occupied in considering in detail the objections to, the. instructiоns refused and modified. We find, upon examination, that the fifth instruction, to which a modification was made by the court instructing the jury on the doctrine of comparative negligence, should not have been so modified. The doctrine of comparative negligence is no longer the law in this State. (City of Lanark v. Dougherty,
It is strongly urged by appellant that certain remarks of counsel for appellee on the trial of this case were such as should cause а reversal of this judgment. We have examined the record very carefully, and while we find the remarks and acts of counsel which are objected to were not of the character a trial court should permit, we are not prepared to look at them with the degree of seriousness that counsel for appellant urge in their brief. We have frequently said that it is the duty of the trial court to control counsel, in the conduct of a trial and in the argument of a case, within reasonable bounds. It is not always possible to bring before this court the expression of counsel in making objectionable remarks, and the acts of counsel in connection therewith, so that what might in the trial court be еxtremely improper is not presented to us with the same force. We are not able to see, after having carefully examined this record, that the remarks and conduct of counsel for appellee were such as in themselves should call for a reversal of this judgment.
Finding no error of law in this record, the judgment of the Appellate Court for the First District is affirmed.
Judgment affirmed.