delivered the opinion of the court:
It is first insistеd the court below erred in refusing to transfer the cause to the Federal court. That question is not presented by this record for our dеcision, the bill of exceptions containing no motion for such removal, affidavit or bond; neither does it appear that any exception was taken to the denial of the motion. Merchants’ Despatch Transportation Co. v. Joesting,
• The other errors assigned question the correctness of the decision of the case upon its merits. The declaration proceeds throughout upon the admission that the plaintiff was wrongfully upon the bridge at the time of the accfi dent, and could only recover by proving that the conduct of the defendants was wanton and willful, or that after discovering Ms perilous position they did not exercise ordinary care tо avoid the accident. The last two counts are upon the latter theory, and the trial was had upon the issue formed on these counts. Thus, the court instructed the jury, at the instance of the defendants:
9. “You are instructed that if it appears, from the evidence in this case, that the plaintiff was a trespasser upon the track or bridge of the defendant receiver at the time he was struck and injured, then said defendant receiver was not required, and the law did not impose any duty whatever upon his engineer, to discover the plaintiff’s рresence upon the same, but only required him, after he discovered the plaintiff and had knowledge that he was in a perilous position, to exercise reasonable care and prudence to avoid collision, and if it further appears that the engineer did exercise such care and prudence, and did everything within his power to prevent the train from colliding with the plaintiff after he discovered him, then your verdict must be for the defendants.
10. “The defendants are liable in this case only if the engineer failed to exercise ordinary care to prevent the injury after he became aware of the danger to which the plaintiff was exposed; and by ordinary care is meant such care as would be ordinarily used by a prudent person performing like service under similar circumstances.”
Two instructions were given on behalf of the plaintiff, and they each lay down the same rule as to the defendant’s liability stated in the forеgoing instructions, and correctly announce the law as held in Illinois Central Railroad Co. v. Noble,
Whatever may be said as to the weight of the testimony on the question whether the engineer did exercise due care to avoid the injury after he discovered plaintiff, as an original question, it must be conceded that it is foreclosed by the judgment of affirmance in the Appellate Court. Three instructions asked by the defendants werе refused, but they did not go to that question of fact, and if they had been free from objection, in view of those given, there would have beеn no reversible error in their refusal. They did not, however, state the law correctly. The eighth states that an engineer is not bound to stoр his train the moment he sees a person on the track, but has the right to presume that such person will leave the track in time to esсape danger, and without being negligent may continue to run the train until he discovers that such person is heedless of danger. This instruction ignores the fact that the plaintiff was upon a bridge of considerable elevation, and could not, therefore, step out of danger. A similar instruction was condemned in the case of Illinois Central Railroad Co. v. Slater,
There was submitted by the defendants, with the other instructions, a peremptory direction to the jury to find for the defendants, and it is insisted that the court erred in refusing to give it. The defendants did not, at the close of the plaintiff’s testimony nor at the close of all the testimony, ask to hаve the case taken from the jury nor to have them peremptorily instructed to return a verdict for the defendants, but, as we have seen, submitted the case to the jury upon instructions which assumed the questions of fact necessary to make out plaintiff’s case werе properly before them. In other words, defendants submitted the case to the jury for their determination upon the facts, thereby conceding that there was a question for their decision. The refusal of the instruction, when asked upon the final submission of the case, was proper, because it sought to take away from the jury all questions of fact and require them to determine, as a matter of law, that there was no evidence before them tending to support the plaintiff’s cause of action. If the defendants desired the court to pass upon the legal question as to whether or not there was any testimony before the jury tending to prove the plaintiff’s case, and to bring that question before this court for review as a question of law, they should have asked to have the case withdrawn from thе jury before the final submission. There was no error in the refusal of this instruction.
The question as to whether the engineer was properly joinеd with the receiver cannot now be raised, issue having been taken on the declaration so joining him.
In view of the manner in which this case was tried, and the decision of the Appellate Court, no reversible error is here shown.
Judgment affirmed.