210 Ill. 603 | Ill. | 1904
In deciding this case the Appellate Court expressed in its opinion the following views:
“The appellee contends, and the trial court so held, that the appellant was guilty of contributory negligence,- and that this clearly appears from the undisputed evidence in the case. This presents the only question for argument. * * * We are relieved from a consideration of the evidence in proof of appellee’s negligence alleged in the declaration, except so far as may be necessary to determine whether appellant was in the exercise of ordinary care. * * * It devolved upon appellant to prove that he was in the exercise of ordinary care at the time of the injury. "x" * * If the appellant’s negligence contributed to the injury, he cannot recover. He could not be in the exercise of ordinary care and at the same time guilty of contributory negligence. Willfulness and wantonness not being charged, whatever the negligence of the appellee, the appellant may not recover, unless it appear that he was in the exercise of ordinary care at the time of the injury. What may be held ordinary care, or due care, within the requirements of the law must be determined from the circumstances in the particular case. That which may be ordinary care in one case might be gross negligence in another. The foregoing propositions of law, applicable under the facts in this case, have been repeatedly announced. * * *
“Ordinarily, the question of negligence, whether of the plaintiff or defendant, is a question of fact for the jury. Where, however, as in this case, there is no evidence, tending to show affirmatively that the plaintiff was in the exercise of due care and caution, nor any reasonable inference of such care from circumstances disclosed by the testimony, the duty is imposed upon the court to direct a verdict for the defendant. * * * It is only where, after conceding as true all that the evidence tends to prove in favor of the party charged with the want of due care or negligence, that the court may assume the absence of due care, or the existence of negligence, and direct a verdict accordingly.
“In this case, there is no controversy in the evidence bearing upon the appellant’s conduct prior to and at the time of the injury. He was experienced in the service in which he was engaged. He was familiar with the yard and the use of railroad tracks therein. He knew the track, on which he was standing, and its use in the running of trains and the frequent moving of engines over it to and from the round-house. In his testimony he states that he knew the danger of standing on the railroad track, and the liability to injury in so doing. There was nothing to obstruct the view, or to prevent his seeing the approaching engine in time to avoid the injury, whatever its speed, or the negligence of the engineer to sound the whistle or ring the bell. There was no apparent necessity for his being upon the track at the time. His duties could have been as well performed from a secure position between the tracks. It is a matter of common knowledge, that work in and upon a railroad yard with numerous tracks, where there is almost constant switching of cars and the movement of trains and engines, is extremely hazardous, and ordinary dare under such conditions requires a high degree of caution and watchfulness to avoid injury. There was nothing in the situation or circumstances, attending the accident, to exonerate or excuse appellant’s manifest carelessness and indifference to the danger of his position on the track, when struck by the tender. * * * It does not appear that the appellant was in the exercise of ordinary care for his own safety at the time and place of injury. It clearly appears that his own negligence and lack- of. ordinary care contributed to the injury, of which he complains.
“The judgment of the city court is, therefore, affirmed.”
The foregoing opinion is in harmony with the views of this court, as expressed in the recent cases of Beidler v. Branshaw, 200 Ill. 425, and North Chicago Street Railroad Co. v. Cossar, 203 id. 608. In Beidler v. Branshaw, supra, it was said (p. 430): “Although it is true that the question of contributory neglig'ence is ordinarily a question for the jury, yet when there is no conflict in the evidence, and the court can clearly see that the injury was the result of the negligence of the party injured, it should not hesitate to instruct the jury to return a verdict for the defendant. * * * A party has no right to knowingly expose himself to danger and then recover damages for an injury, which he might have avoided by the use of reasonable precaution. * * * While questions of negligence, or of contributory negligence, are ordinarily questions of fact to be passed upon by a jury, yet when the undisputed evidence is so conclusive that the court would be compelled to set aside a verdict in opposition to it, the court may withdraw the case from the consideration of the jury, and direct a verdict.”
Accordingly, the judgment-of the Appellate Court is affirmed. Judgment affirmed.
