delivered the opinion of the court:
Aрpellant operates a double-track street railway on Ewing avenue, in South Chicago. Ewing avenue runs north and south, and at its intersection with One Hundredth street the railroad tracks of the Pittsburgh, Ft. Wayne and Chicago, Lake Shore and Michigan Southern, and Baltimore and Ohio Railroad Companies cross the avenue, running from north-west to south-east. The Pittsburgh, Ft. Wayne and Chicago railway tracks are the most southern of the three sets of tracks. There is a hotel, called the “Ewing House,” on the south-west corner of Ewing avenue and One Hundredth street, and the usual stopping place for cars going south is opposite this house, just south of the railway tracks. On Sundаy, October 27, 1897, an electric motor car of appellant, with a-trailer car attached, approached from the north and stopped north of the Baltimore and Ohio tracks. The conductor of the motor car walked forward to the tracks to see if the way was clear, and upon signals from him and the trailer conductor the cars passed slowly over the tracks. The cars again stopped, and after the same observation by the conductor and signals they crossed the tracks of the Lake Shore and Michigan Southern. They again-came to a stop, and after the same signals passed over thе Ft. Wayne tracks. Twenty or thirty people had collected at the corner of Ewing avenue and One Hundredth street, in the vicinity of the Ewing House. They were going to a ball game at Hammond, Indiana, and as the cars passed over the Ft. Wayne tracks they hurried to the cars for the purpose of taking passage and сlimbed on before they came to a stop. The appellee was in the crowd, but was the last, or about the last, of those who attempted to get on. When he reached the cars they were over the railway tracks, or nearly so, and were either running slowly or standing still. In attempting to get on he fell and his hand was run over, resulting in its amputation. He brought this suit in the circuit court of Cook county against appellant for damages, and recovered judgment, which has been affirmed by the Appellate Court for the First District.
At the close of the evidence the defendant moved the court to instruct the jury to return a verdict of not guilty, and this the court rеfused to do. This refusal is the first alleged error argued by counsel, and it is insisted that the evidence did not tend to prove a cause of action.
There were three counts in the declaration. The supposed negligence alleged in the first count was, that the defendant did not stop the car after the plaintiff had given notice of his intention to take passage, in consequence of which, while he was attempting to take passage, he was thrown to the ground. The second count alleged that defendant brought the car to a partial stop to allow plaintiff to take passage, and while he was attempting- to secure a seat on the car increased the speed of the car with a sudden start or jerk, throwing him off. The third count alleged that the defendant stopped the car, and while plaintiff was attempting to secure a seat started it in- a violent and sudden manner, by which he was thrown down. The first count did not state a cause of action for plaintiff’s injury. If a refusal to stop cars on notice would give rise to a cause of action, it would necessarily be for damages resulting from the refusal to stop, which might consist of delay or loss of time, but the refusal to stop and accept him as a passenger would not be the proximate' cause of the injury alleged. As to the actionable negligence charged in the declaration the evidence was in direct conflict. A considerable number of witnesses who were passengers on the car testified on each side, and directly contradicted each other as to material facts. The plаintiff testified that he jumped on the motor car before it stopped, and the other witnesses called by him either testified that it was moving slowly or that it had stopped. The testimony, introduced by plaintiff tended to show that he got safely on the running board toward the front end of the motor car, and worked his way backward to about thе center of the car to find a seat, taking hold of the upright supports with his hands and moving along in that way; that when he reached the middle of the car a passenger got up to let him pass through, and as he had one foot on the running board and the other raised to step in the car, there was a sudden and violent start or jerk of the car which threw him off. This evidence tended to prove the cause of action, and the court was right in refusing to instruct the jury, as a matter of law, to return a verdict for defendant.
It is next insisted that the court erred in admitting incompetent and.immaterial evidence. On the cross-examination of the motorman and cоnductor the court allowed plaintiff’s counsel to ask them whether it was not customary for people to get upon cars at the crossing of the railway tracks when they were in motion. The street cars were compelled to stop and the conductor to go forward and see if the way was, clear in the case of each set of railway tracks, and upon signals the cars would pass over such tracks. In this process they, ran so slowly that persons could get on them if they saw'fit, so far as the speed of the cars was concerned. It was not the business of the motorman to keep them off, nor the duty of the conductor. To hold that defendant must prevent people from committing acts of negligence by getting on cars in motion at other than the stopping places would be to make it a guardian-and protector of the public and responsible for a failure to prevent acts of negligence. The mere fact that the negligent, heedless or reckless should choose to get on the cars without due regard for their own safety would not change the responsibility of the defendant. It could only be held responsible for its own act of negligence, and to hold that it must prevent negligent acts in others, or assume the same responsibility as it would at a regular stopping place, would be equivalent to abolishing contributory negligence altogether. - In the case of North Chicago Street Railroad Co. v. Kaspers,
The court refused to give to the jury instructions numbered 19, 26, 27 and 28, all of which were designed to inform the jury that if the plaintiff аttempted to board the motor car while it was in motion, and in doing so missed his footing and fell, they should find for the defendant. It is not negligence, as a matter of law, for a passenger to get on a street car when it is in motion; but the question is one of fact, depending upon the rate of speed of the car and all the circumstances. (North Chicago Street Railroad Co. v. Wiswell,
The court also refused to give instruction numbered 20, requested by the defendant, to the effect that if the plaintiff did not signal the motorman or conductor, and the motorman did not slacken the speed of the cars or bring them to a stop for the purpose of inviting plaintiff to get on, their verdict must be for defendant. The evidence that a large number of people approached the cars and got on with the knowledge of the motorman and conductor was uncontradicted. Plaintiff was the last one to get on, and the motorman and conductor had notice of hiS intention to board the car. Under these circumstances it was not necessary for him to signal the motorman or conductor to manifest his desire. It was not error to refuse that instruction.
It is urged that instruction No. 12, given at the request of the plaintiff, was erroneous in assuming that the plaintiff was a passenger while attempting to board the car. The instruction required proof that defendant was guilty of the negligence charged in the declaration and in the manner therein alleged, and that plaintiff was exercising ordinary care and caution for his own safety, and if that was so, the verdict would necessarily be for the plaintiff, regardless of an abstract statement which was contained in the instruction as tо the duties of carriers and passeng'ers. We do not think it can be said the instruction assumed that the plaintiff was a passenger.
The court wrote and gave to the jury, of its own motion, the following instruction:
“If it be the case that the plaintiff, at the time he was injured, was under the influence of liquor or intoxicated, nevertheless it doеs riot follow that he cannot recover in this action. Whether he was under the influence of liquor or intoxicated is material only as bearing on the question of whether, in attempting to get on said car, he was, under the circumstances, exercising ordinary care,—that is, such care as prudent persons ordinarily exercise under like circumstances.”
• This instruction was objectionable for different reasons. In the first place, it was argumentative in form. Instructions should merely state the law for the guidanee of the jury, and not employ the language of counsel in argument. It is not a proper form of instruction to tell a jury that although some matеrial fact may exist, nevertheless it does not follow that the plaintiff has not got a good case, and thereby attempt to minimize or destroy the effect of legitimate evidence. Besides, the conclusion of contributory negligence which would defeat the action might or might not follow from the mere fact of intоxication, depending upon the degree of such intoxication. The evidence of intoxication was admissible as a fact tending to prove negligence on the part of the plaintiff. While voluntary intoxication does not constitute negligence in law, proof of the fact is competent to be considered in determining whether the person was taking that care for his safety which a reasonably prudent man who was sober would take under the same circumstances. As was said in Illinois Central Railroad Co. v. Cragin,
Again, the instruction was objectionablé as being open to the сonstruction that plaintiff might recover, though intoxicated, if he was using such care as a prudent person ordinarily exercises under the same circumstances, including the fact of his intoxicated condition. The hypothesis of fact stated in the instruction was, that the plaintiff was under the influence of liquor or intoxicated, аnd under the instruction that was one of the things attendant upon the event of his losing his footing and falling from the car. The instruction did not require him to use that degree of care which a person of ordinary prudence and caution, in the full possession of his faculties, would exercise,—and that was the degree of care demanded bjr the law. If the plaintiff, by intoxication, exposed himself to danger and received his injuries for the want of such care as a reasonably prudent person would have exercised if sober, he would be guilty of contributory negligence. Mere intoxication will not relieve a person from the responsibility of avоiding danger in attempting to get on a street car, to the same extent as if he had been sober. The rule is that voluntary intoxication will not excuse a person from such care as may reasonably be expected from one who is sober. (Toledo, Peoria and Warsaw Railway Co. v. Riley,
No prejudicial error being made manifest, the judgment of the Appellate Court is affirmed.
Judgment affirmed.