| Ill. | Oct 24, 1901
delivered the opinion of the court:
Counsel for appellant insist there was no evidence tending to show that appellee, was in the exercise of ordinary care for his own safety, and that the trial court erred, for that reason, in refusing to give a peremptory instruction to find for the defendant. The theory upon which counsel asked the instruction was, that appellee, in remaining upon the track for the purpose of saving his team, voluntarily exposed himself to danger merely to protect his property, and his act amounted to negligence per se. Although the law will not justify a party in exposing himself to personal danger in order to protect his property, appellee had the right to try to get his wagon off the railroad track if the circumstances were such as to justify a reasonable belief that he could do so with safety. The fact that Hord had gone up the track, around the curve, to flag any train which might be approaching, was calculated to lead him to think it would be stopped and that he would have time to save his team and wagon. He also had the right to assume that the train would not approach at a dangerous rate of speed and without warning. Under the circumstances as they appear from the record we cannot say the jury could only draw one inference (that of negligence) from his act, and therefore it was negligence per se. On the contrary, to say the least, a different conclusion might reasonably be drawn by different minds, and such being the case, it was a question to be submitted to the jury. Illinois Central Railroad Co. v. Anderson, 184 Ill. 294" date_filed="1900-02-19" court="Ill." case_name="Illinois Central Railroad v. Anderson">184 Ill. 294.
Moreover, the declaration charges the defendant with willfully and maliciously inflicting the injury. If the record discloses any evidence tending to support that averment, negligence on the part of the appellee, if conceded, would not excuse the appellant. (Lake Shore and Michigan Southern Railway Co. v. Bodemer, 139 Ill. 596" date_filed="1892-01-18" court="Ill." case_name="Lake Shore & Michigan Southern Railway Co. v. Bodemer">139 Ill. 596.) The evidence tends to prove that the train was going at a high rate of speed around a sharp curve, where the view was obstructed by an embankment, approaching a street which was much traveled, giving no warning by the ringing of the bell or sounding the whistle; and this testimony, without passing upon its weight or whether it was overcome by other evidence, tended to prove the charge of willfulness and wantonness in the management of the train. The jury might well have based its verdict upon that theory of the case. All controverted questions of fact must be treated as settled adversely to appellant.
Complaint is made that the trial court refused to give two instructions for the appellant with reference to the “proximate cause” of the injury. They were both misleading, in that they singled out one fact and asked the court to tell the jury that it could not be regarded as the proximate cause, while such fact was really only one of a series of facts which together might have been the proximate cause. Even had they set forth the law correctly they were properly refused, because that branch of the cause was clearly set forth in other instructions given. Twenty-seven instructions were given on behalf of defendant, many of which are, to say the least, most favorable to it and which cover every phase of the case.
We find no prejudicial error in the record. The judgment of the Appellate Court will be affirmed.
Judgment affirmed.