221 Ill. 392 | Ill. | 1906
delivered the opinion of the court:
The eight freight cars and the switch engine, coupled together for the purpose of moving from one point to another upon the railroad track under power furnished by the engine, constituted a train. Caron v. B. & A. R. R. Co. 164 Mass. 527.
Appellee’s contract not only permitted him to ride upon this particular train, but required him to do so, and, according to the undisputed evidence in this record, when he went upon the engine to ride he went there rightfully and there became a passenger for hire. The train was just starting upon its long journey to Newport News, Virginia. It was the duty of appellant to furnish at the National Stock Yards a suitable car in which appellee might ride. It failed in that duty, and, by its counsel, says that appellee should have refrained from getting on the train, and by riding on a street car, or by some other method of travel, have overtaken the train at the next station, which would have been the Denverside yards of appellant, where, it is said, a caboose would have been added to the train, in which appellee might have ridden safely. Appellee was under no obligation to do this. When appellant’s engine was attached to these cars the train upon which he was entitled to ride was before him. His contract authorized and required him to ride upon that particular train. He needed no permission from those in charge of the train. The written contract made him a passenger for hire, and it is entirely immaterial whether the foreman of the train did or did not consent that he should ride. It is also immaterial whether appellant was engaged generally in the business of carrying passengers from the National Stock Yards to the Denverside yards, or whether the train foreman had the actual or apparent authority to permit or invite appellee to become a passenger upon the engine. Appellee found himself confronted by unusual and exceptional circumstances, under which he might lawfully ride upon the engine. Lake Shore and Michigan Southern Railroad Co. v. Brown, 123 Ill. 162.
In Illinois Central Railroad Co. v. Jennings, 217 Ill. 140, to which appellant calls attention, the shipper’s contract, unlike that of appellee, expressly provided that he should ride in the caboose, and there was a caboose attached to the train. He left the caboose and at the invitation of the conductor rode upon the engine. The case at bar is entirely dissimilar.
Appellant makes the same objection to the second and seventh instructions given on the part of appellee. The second was in words following:
“If the jury believe, from a preponderance of the evidence, that the defendant is guilty of the negligence charged in the declaration, or either count thereof, and that the injury to plaintiff complained of and alleged in the declaration resulted- directly therefrom, and that the plaintiff was in the exercise of ordinary care for his own safety before and at the time of the injury, the defendant is liable and the plaintiff is entitled to a verdict.”
In cases of this character, where the declaration states a good cause of action, it would seem to be axiomatic that if the evidence showed the defendant was guilty of the negligence charged in -the declaration, that the injury resulted directly therefrom, and that the plaintiff was in the exercise of ordinary care before and at the time of the injury, and had not assumed the risk, there should, as a matter of course, be a verdict against the defendant. Appellant, however, argues that this instruction furnished a test of liability, and that it was erroneous because it did not require the jury to find, from the evidence, before returning a verdict against the appellant, that the appellee was a passenger and rightfully upon the engine while riding there. It- appears from the declaration that the relation of passenger and carrier existed between the parties hereto at the time of the accident, and the negligence charged against the appellant is a failure to exercise the care required by the law for the safety of its passenger. Unless the appellee was a passenger and rightfully upon the engine appellant was not guilty of the negligence charged in the declaration.
The two instructions objected to stated the law correctly.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.