119 Ill. App. 527 | Ill. App. Ct. | 1905
delivered the opinion of the court.
. The evidence is in conflict upon, the main points in the case, except as to the nature of the plaintiff’s injuries. The plaintiff claims that he got on the grip car at Erie street, nearly a mile distant from the scene of the accident, for the purpose of becoming a passenger, with his fare in pocket and ready to be paid upon demand. The claim of the defendant is that the plaintiff, in company with several other boys, had been flipping on the trailers of this first out-bound train all the way out from the city, jumping on and off to avoid the conductor, and hanging to the side of the cars next the other track, where the foot-board was not down and entrance to the car was bárréd by a wire frame work running the whole length of the car. • The evidence for the plaintiff tends to prove that he was crowded to a point where he was knocked off by the passing train as his train was slowing up to stop at a street crossing, and that his leg was run over by the following electric car. That of the defendant tends to prove that he was hanging onto the outside of the wire frame work, and that on the approach of the conductor he jumped to the southwest, and after jumping was struck by the in-bound train and thus received his injuries. The evidence of the respective parties also differs as to the care, or the want of it, exercised by the motorman of the electric car. It is not necessary for us to set out the evidence in detail, nor to decide whether or not the verdict is supported by the evidence, for the reason that this case must be reversed upon other grounds.
The first count alleged negligence upon the part of the employees in charge of the train upon which the plaintiff was riding, and of those in charge of the in-bound train. The court instructed the jury to find the defendant not guilty under this count.
A railroad company, as a carrier of passengers, is held to the use of the highest degree of care for the safety of its passangers consistent with the mode of conveyance and the practical operation of its road. N. C. St. Ry. Co. v. Polkey, 203 Ill. 233. This includes a provident care to guard against the happening of accidents, a reasonable anticipation of dangers that may threaten its passengers, and the exercise of a high degree of care to avoid such dangers. The crowded condition of the out-bound train, because of which some of the passengers were compelled to stand and were permitted to stand on the foot-boards, called for greater care upon the part of the employees in charge of these passing trains. The fact that the injury was occasioned by the wrongful act of the passengers desiring to alight in pushing their way out before the car stopped will not relieve the defendant from the consequences of the overcrowding of the out-bound train. Booth on Street Railways, 481.
It is not disputed, that, the train on which the plaintiff was being carried was overcrowded. The gripman says, “We had all we could carry, all that could possibly get on.” The cars, including platforms, were full, Many passengers were standing on the foot-boards. The evidence tends to show that the out-bound train, at the time of the accident, was slowing down to a stop for the purpose of letting off passengers; that those desiring to alight were pushing their way out; that in their efforts to leave the car they crowded the plaintiff out so that his body was dangerously near the in-bound track; that the employees of the in-bound car saw, or might have seen, in the exercise of that degree of care which the law imposes upon them, that, the out-bound car was overloaded and was about to stop, and knew, or might have known, that in the effort of others to alight the passengers standing upon the foot-boards might be pushed from their places, yet they continued on their way until their train had passed the outbound train and had knocked the plaintiff to the ground.
The law is well settled that if there be any evidence to support the claim of the plaintiff, as set forth in this first count, of negligence on the part of the employees of these passing trains, that question must be submitted to the jury, and the court has no right to take it from them by directing a verdict for the defendant upon that count. In our opinion the action of the court in this regard was reversible error.
The 18 th instruction given at the request of the defendant reads as follows: ,
18. “The court instructs the jury that the plaintiff has alleged in his declaration, and in each count thereof, that at the time and place in question he was a passenger on one of the cars of the defendant. This is a material allegation of the declaration and the burden of proof is upon the plaintiff, and he must prove said allegation by a preponderance or greater weight of the evidence before he can recover in this case. If you find from the evidence, under the instructions of the court, that the plaintiff has failed to prove by a preponderance or greater weight of the evidence in this case that at the time and place in question the plaintiff was a passenger on said car, then he cannot, recover and you should find the defendant not guilty.”
This instruction prevents the plaintiff from recovering for injuries inflicted upon him by the employees of defendant in charge of the electric car, notwithstanding they may have been guilty of the grossest negligence, unless the jury believe that the plaintiff has proved by a preponderance of the evidence “that at the time and place in question he was a passenger on one of the cars of the defendant.” If the plaintiff while crossing the street had fallen upon the tracks of the defendant in a fit, and thus rendered unconscious, the defendant, through its servants in charge of the electric car, would owe him the duty of exercising ordinary care not to run over him.
As we read the declaration, the allegation is that plaintiff was a passenger on the train from which he was knocked off. It is only by inference that he can be considered as a passenger while lying, on the ground. ' There is no direct allegation to that effect.
It does not follow that plaintiff’s action necessarily must fail if he has not established by a preponderance of the evidence that he was a passenger on one of the cars of the defendant. If the evidence shows that the plaintiff, without fault on-his part,'was injured by and through the negligence of the defendant’s employees, he is entitled to a. recovery, whether or not he was or had been a passenger. If of the matters alleged in the declaration enough are proved to support a claim for damages,- it is a matter of indifference that other allegations are not supported by the evidence. Rock Island v. Cuinely, 126 Ill. 411; approved in Joliet v. Johnson, 177 Ill. 180.
This instruction selects and sets forth one allegation of" substance in'the declaration, and tells the jury unless that-allegation' be proven they must find the defendant not guilty. This is'not the law. In actions of tort the plaintiff may prove a part of his charge, if the averment is< divisible, and there'be enough proved to support his case.
The 20th instruction, tendered by the defendant, reads:
20. “If the jury believe from the evidence, under the-instructions of the court, that the plaintiff was riding-upon defendant’s cable train proceeding in a northwesterly direction upon Milwaukee avenue, and that he was • clinging to one of the cars on the side next to the parallel track, and that he jumped or dropped or fell or was knocked off said car and fell upon the track, and if you further believe, •from the evidence, under the instructions- of the court, that he lay with one leg over one of the rails of said track in front of- an electric car which was following the traim upon which he had been riding, then the court instructs you that the servant or servants in charge of said electric car were only bound to exercise Ordinary care and caution to avoid injuring the plaintiff after they had time and; opportunity in the exercise of ordinary care and caution, to become conscious of his danger and reasonable' time and opportunity to perform such duty as thus defined. And if the jury believe from the evidence, under the instructions of the court, that the servant or servants 'of the defendant in charge of said electric car;.' became conscious as soon as possible, by the exercise of ordinary care, of theplarntiff’s danger and that they exercised ordinary care to-avoid injuring him after becoming conscious of the plaintiff’s danger, in such case the plaintiff can not recover herein for an injury by said electric car.”
This instruction holds that if the plaintiff was riding on. the first out-bound train, and “that he was clinging to one-of the cars on the side next to the parallel track, and that, he jumped or dropped or fell or was knocked off said car- and fell upon the track,” and that the employees in charge: of the electric car exercised ordinary care to avoid injuring' him, he “cannot recover herein for an injury by said, electric car.”
The jury are not called upon by this instruction to find, from the evidence that the plaintiff was not a passenger, and. was- not riding where he is stated to have been with the' knowledge and consent of the servants in charge of the outbound " train. It is silent as to the crowded condition of' that train. It forbids a recovery, no matter how gross was-the carelessness of the servants of the passing trains which caused him to be “knocked off said car,” if the servants in charge of the electric, car exercised ordinary care to avoid, injuring him after they became conscious of his danger.. This instruction in effect told the jury that the servants off the carrier may knock a passenger off the train upon which he is riding, either by careless management of the train, or even wilfully, and the defendant go scot free, if its-servants in charge of its following train cuts off one of his: legs without fault upon their part. In our opinion this-instruction violates the plainest principles of law, and the-giving of it is reversible error.
The judgment of the Superior Court is reversed and the-cause is remanded.
Reversed and remanded..
