179 Ill. 126 | Ill. | 1899
delivered the opinion of the court:
At the close of all the evidence in the case the defendant requested the court to instruct the jury to find the defendant not guilty. The court refused the instruction and the defendant excepted, and the ruling of the court on the instruction is the only error relied upon to reverse the judgment.
It may be conceded, as stated in the argument of counsel for appellant, that in order to recover it must appear from the evidence that at the time of the accident plaintiff was in the exercise of ordinary care and that the defendant was guilty of negligence which was the proximate cause of the injury. It is, however, contended that the plaintiff, at the time of the accident, was not in the exercise of ordinary care, and that for this reason he can not recover. In order to determine this question a brief reference to the facts as established by the evidence is necessary.
It appears from the record that plaintiff took the cable car as a passenger at Monroe and Dearborn streets between twelve and one o’clock on the 29th of January, 1896. He procured a paper and took a seat in the car, and remained seated, reading his paper, until he reached North avenue and Eug'enie street, within a block of his home, when he stepped out on the rear platform of the car for the purpose of alighting. While standing on the platform, with his back against the dash-board, the car gave a sudden jerk, throwing him over the dash-board and upon the street. Witnesses on the car testified that the jerk was so violent that passengers were thrown off their seats. It does not appear from the evidence that there was any regulation of the railway company prohibiting passengers from riding on the platform, but, on the other hand, it appears that other passengers did ride on the platform without objection on the part of those in charge of the car.
Was the fact, therefore, that plaintiff was standing on the platform when injured, such negligence as would preclude a recovery? We think not. Whether the plaintiff’s standing on the platform was negligence was a question of fact for the jury to determine from all the facts and circumstances surrounding the transaction. In North Chicago Street Railroad Co. v. Williams, 140. Ill. 275, it was held that whether a person, in getting upon a street car while it is in motion, is chargeable with want of ordinary care is a question of fact for the determination of the jury under all the circumstances of the case. In the decision of the case, McDonough v. Metropolitan Railroad Co. 137 Mass. 210, and Briggs v. Union Street Railway Co. 140 id. 72, are quoted with approval, in both of which cases it was held to be a question of fact whether a person riding upon, the platform of a street car or attempting to get upon a street car in motion was guilty of negligence.
Meesel v. L. & B. R. R. Co. 8 Allen, 234, is also cited. In the decision of this case it is said: “The seats inside the car are not the only places where the managers of the train expect passengers to remain, but it is notorious that they stop habitually to receive passengers to stand inside till the car is full, and then to stand upon the platforms till they are full, and continue to stop and receive them even after there is no place for them to stand except on the steps of the platforms. Neither the officers of these corporations nor the traveling public seem to regard this practice as hazardous, nor does experience thus far seem to require that it should be restrained upon the ground of its danger. There is, therefore, no basis upon which the court can decide, upon the evidence reported, that the plaintiff did not use ordinary care. It was a proper case to be submitted to the jury upon the special circumstances which appeared in evidence.”
In Upham v. Detroit City Railway Co. 85 Mich. 12, where a party was injured while riding on the front platform of a street car, in the discussion of the same question involved here the court said: “Defendant’s counsel assert that plaintiff left a place of safety inside the car and voluntarily chose one of danger upon the platform, and that as his injury was due in part to the fact that he voluntarily took that position he cannot recover. * * * The answer to the question depends entirely, we think, upon whether or not it is negligence per se to ride upon the platform of a street car when one may ride within. Whether one leaves the car after entering, to ride upon the platform, or whether he steps upon the platform without entering, is of no consequence. His act is as voluntary in the one case as in the other, and the same rule must govern both. The record is entirely silent as to any regulations on the part of the defendant in this respect. But we cannot denude ourselves of the knowledge which is alike common to all, that passengers are constantly riding upon these platforms with the tacit assent of the defendant, and without any protest, notice or regulation. • * * * In the presence of the fact that passengers are permitted to ride upon these platforms constantly, can courts hold them to be dangerous per so?”
There are other cases establishing the same doctrine, but the rule is so well settled that the citation of other cases is not deemed necessary. The plaintiff stepped out upon the platform for the purpose of leaving the car when it approached his residence, and there was ample evidence tending to show that he was in the exercise of ordinary care. There was also ample evidence tending to prove that the accident was caused by the negligence of the railway company. The instruction to find the defendant not-guilty was therefore properly refused, and the judgment of the Appellate Court will be affirmed.'
Judgment affirmed.
