delivered the opinion of the Court:
This is an action to recover damages for a personal injury. The trial below resulted in a verdict and judgment for the plaintiff, and an appeal to the Appellate Court has resulted; in a judgment of affirmance.
The first error assigned is the refusal of the court to instruct the jury, at the request of the defendant, that the evidencе was not sufficient to justify a verdict for the plaintiff, and that their verdict should be for the defendant. We do not think, that the facts shown by the testimony of the plaintiff conclusively established, negligence, on his part, as a matter of law. The court can never be called upon to say to a jury, that negligence has been established as a matter of law, unless the conduct of the injured party has been so clearly and palpably negligent, that all reasonable minds would so pronounce it without hesitation or dissent. “Negligence cannot be conclusively established by a state of facts upon which fair-minded men may well differ.” (C. & E. I. R. R. Co. v. O’Connor,
In the present ease, the plaintiff, in returning from his work to his home on July 18, 1887, between five and six o’clock in the afternoon, was walking westward on the north side-walk of 25th street in Chicago, when he came to the place where appellant’s railroad tracks cross sаid street. At this point eight tracks, running north and south, cross 25th street. ¡ Plaintiff stopped on the easternmost unenclosed track, and ■ looked westward and also southward towards 26th street. • Upon one of the western tracks a passenger .train was moving south across the street; it would appear that another pas- . senger train wаs moving north over another track; freight cars were moving across the street on the second track west of where he stood. While he was looking westward, with his face turned a little towards the north, some cars moving from ' the south across the street upon the track on which he stood, struck him from the rear, knocked him down and injured one foot so that it had to be amputated, and the other so that it was seriously disabled.
Plaintiff states, that he looked south a few seconds before he was struck and saw no cars coming from that direction towards him. This might well be true, as the cars which struck him were suddenly switched off from a track further to-the west, and placed uрon the track on which he was standing, and then pushed or “kicked” rapidly on said last named track towards the north across 25th street. It is said that, if he looked to the south as he said he did, he must have seen the cars which struck him. But he was obliged to look westward at the same time, in order to avoid the passenger and freight trains which were there crossing the street ahead of . him. His attention may have been distracted from a careful view towards the south by the necessity of looking towards the west. The ears may have been thrown so suddenly upon the : track on which he stood, and which he evidently supposed to' be unoccupied, that he did not notice thе movement in time to retreat. The evidence tends to show, that the grade slopes downward from the south to the north at this point; that an engine had pushed, or “kicked,” the cars, which struck him, along this down grade upon the track where he stood, and then was disconnected from the cars, leaving them to move northward over 25.th strеet by their own momentum; that, while these cars were thus moving towards him, there was not only no engine attached to them and no bell sounding, or whistle .blowing, but there was no brakeinan upon them in such a position as to control them, and no flagman anywhere in sight to give warning of their approach.
The plaintiff had as much right to be upon 25th strеet as the railroad company had to be there with its cars. It was a public street, and its use by the company was subject to the right of the general public to use it. Plaintiff could hardly avoid standing upon one of the tracks, as the street crossing was filled and interlaced with a network of tracks. Where railroad compаnies thus cover a public street with a large number of tracks, they must observe unusual care and take extra precautions to avoid injury to persons passing along the street or sidewalks. Plaintiff had a right to believe, that a train of ears would not be allowed to cross the street where he was standing, without giving him warning by bell, or whistle, or flagman. He was not obliged to suppose, that the railroad company would be guilty of such reckless and gross negligence, as to suddenly transfer a number of cars upon an apparently unoccupied track, and then shove or “kick” them thereon upon a descending grade, across a public street in a сrowded city, without engine, or bell, or whistle, or brakeman, or flagman, or note of warning of any kind.
It was a matter for the jury to determine, under all the facts and circumstances as thus detailed, whether or not the plaintiff was exercising due and proper care in his efforts to cross the street. The trial court committed no error in refusing to take the case from the jury.
It is claimed that the verdict is inconsistent with the special findings. The jury found specially, in answer to questions-submitted by the defendant, that plaintiff stopped and stood upon the track where he was struck; that, before he so stopped, and while he so stood, he looked to see if any cаrs were ap-. preaching on that track; that there was nothing to prevent him from seeing the approach of the cars which ran over him, if he had looked, nor anything to obstruct the view of the, track from the point where the cars started to the place where-they struck him, and that said cars could be' seen by a person-standing by the side of the track through the entire distance ■ between the point from which they started, and the point, where they struck the plaintiff.
The proof tends to show, that the track, on which he stood, • was a switch track terminating a few feet south of the side-; walk on the south side of 25th street. If he had seen the cars, when he looked, they may have been ón a track to- the west, and not on the track where he' stood, and, therefore, not in a ■position where they seemed to threaten any danger to him. The jury may have believed, what the evidence tends to show,, that after he turned his look from the south to the west as' above stated, the cars, which had been on another track, were suddenly switched over upon the track east of them, and shoved rapidly forward down the grade towards his position. The evident necessity of looking in two directions, and the division ■ of attention resulting therefrom, may have affected the accu-, racy and clearness of his observation. Under this view of the facts, the special findings cannot be regarded as being ineonsistent with the finding, involved in the verdict, that plaintiff was exercising ordinary care and caution.
It is' objected, that the court refused to require the jury to, find specially upon' certain questions of fact. Defendant’s, ■counsel tendered twenty questions to be submitted to the jury, j Of these the court submitted fourteen and refused to submit1 six. Counsel only complains in his brief of the refusal to submit three of the six, that is to say,'the 8th, 13th and 17th.' The latter questions called upon the jury to state whether the. plaintiff took any precautions for his safety before stepping upon the track where he wаs hurt, or while standing thereon, and whether he made any effort, before stepping upon the track, to ascertain whether any cars were approaching thereon. Without considering the point made by counsel for appellee, that the facts to be found were merely evidential and not ultimate, under the doctrine laid down in C. & N. W. Ry. Co. v. Dunleavy,
It is further objected, that the answer given by the jury to one of the questions was not responsive, and that the court should have required the jury to make another finding, as moved by the defendant. The question thus referred to asked whether there was a flagman on the crossing at the time the plaintiff approached, and at the time of the accident, giving signals. The jury answered: “None visible from the east.” The answer was sufficient under the сircumstances developed by the evidence. The plaintiff and two other witnesses swore that they saw no flagman. They were on the east side of the tracks and looked towards the west. A witness named Pen-ton swore, that he was there as flagman- at the time of the accident, but was employed by the C. R. I. & P. R. R. Co., who owned the twо western tracks. If he was really there, he was west of the place where the accident occurred, and must have been concealed by the passing trains already referred to. It is not shown, that the defendant had a flagman there. The ordinance makes it the duty of the flagman “to signal persons traveling in the direсtion of any or either of the crossings, and warn them of the approach of any locomotive engine or any impending danger.” This flagman not having been visible, • and not being in a position where he could warn parties approaching from the east, the situation, so far as the plaintiff was concerned, was the sаme as though there was no flagman.
It is charged that the first instruction given for the plaintiff was erroneous. This instruction is substantially the same as the first instruction set out in full and commented upon in C. & A. R. R. Co. v. Fietsam,
The second instruction is objected to because it submits the question to the jury whether the plaintiff was injured by the negligence of the defendant “as charged in the declaration,” that is to say, in all the counts of the declaration. The first count charged carelessness in the management of the cars, the second, failure to station a flagman on the crossing, the ■ third, failure of the flagman to signal or give warning, the fourth, violation of the statute in not sounding a bell or whistle ; eighty rods from the crossing, the fifth, moving at a greater rate of speed than that allowed by the statute and the city ordinance. It is said, that there was no proof to sustain the . charge in the fourth count, because the cars which struck : plaintiff started from 26th street—one block from the crossing—and did not start at a distance of fully 80 rods from the crossing. In other words, it is claimed, because the statute ; requires a bell or whis.tle to be sounded “at the distance of at ¡least 80 rods” from the crossing and to be kept ringing or ‘"whistling until the crossing is reached, that á train, which i begins to move towards a crossing at a point within 80 rods, ¡nr less than 80 rods, therefrom, is not bound to comply with 'the statute. We think that the command of the statute is , applicable, as well when the cars begin to move within the 80 ,rods, as when the point of starting is fully 80 rods, or more ¡than 80 rods distant. It is also said, that there was no proof 'to support the second count, because it was not shown that this particular crossing was in that portion or district of the city where the ordinance required flagmen to be stationed, Appellant is estopped from urging this objection against рlaintiff’s. second instruction, because it asked the court to give, and the court did give at its request, at least two instructions requiring the jury to believe from the evidence, among other, things, that there was no flagman on the crossing, and that no signal or warning was given by a flagman, before a verdict could be rendered against the defendant. This was a conces: sion of the-point, that the presence of a flagman at this par-' tieular crossing was a matter proper to be submitted to the jury for their determination. The fact that the G. B. I. & P. B. B. Co. had a flagman on the west side of the tracks tended to show, that this crossing was within the territory where the ordinance required flаgmen to be stationed.
The third instruction given for' plaintiff is objected to because it allows the jury, in estimating the damages, to take into consideration “prospective suffering and loss of health.” The objection is that there was no evidence upon this subject. We think the proof tends to show, that the wound inflicted by the crushing of thе foot which was not amputated, was apt to break out afresh at any time, and that the foot was not in such a condition that it could be used. Plaintiff is obliged to go upon his knees, and use his arms in order to move his body. There was evidence enough to' justify the insertion of these words in the instruction.
We discover nothing in defendant’s refused instructions which was not embraced in the instructions which were given.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.