Illinois Cent. R. Co. v. Anderson

• Decision Date: 19 February 1900
• Parties: ILLINOIS CENT. R. CO. v. ANDERSON.
• Court: Illinois Supreme Court

184 Ill. 294

56 N.E. 331

ILLINOIS CENT. R. CO.

v.ANDERSON.

Supreme Court of Illinois.

Feb. 19, 1900.

Appeal from appellate court, Fourth district.

Action by J. H. Anderson, Jr., against the Illinois Central Railroad Company for injuries. From a judgment of the appellate court, affirming a judgment in favor of plaintiff (81 Ill. App. 137), defendant appeals. Affirmed.

The statement of the facts in this case, as made by the appellate court, is as follows: ‘This is an action of trespass brought by appellee against appellant for unlawfully, negligently, and willfully running its engine, with cars attached, against a car in which appellee was loading hogs, whereby he, in the exercise of ordinary care, was thrown from the car to the ground and severely injured. The immediate facts are that appellee was a shipper of five stock over appellant's railroad, and on the 30th of November, 1897, at about the hour of noon, at Mason, a station on appellant's road, was loading a car of hogs on the switch track for shipment to Chicago, whem appellant's local freight train, coming from the south, bound north, stopped at the station a short time, and uncoupled the locomotive and two cars, and ran north to the switch track, and backed south to switch out a car of wood standing on the switch track, south of the car loaded by appellee. There was nothing to obstruct the vision of the train crew as the engine and two cars were backing in on the switch track to couple on to the cars there. At the time the engine and cars backed down the switch track appellee had got his hogs into the car, and had thrown back and apron connecting the stock chute with the car, and stepped into the door of the car, and was holding onto the bar, a plank about six inches wide, across the open door space, and about three and a half feet from the floor of the car, his feet on the floor of the car, and his body outside of the bar, trying to keep his hogs from getting out of the door, and at the same time, with the aid of his brother, trying to close the door, when the cars came together, and he was knocked or jarred off the car to the ground, a distance of six or more feet, at the place where the car was standing, and, falling on a tie of the road, one or more of his ribs were broken, the ligaments of his ankle ruptured, and he was otherwise seriously injured, and probably never will fully recover. The verdict was for $1,000 damages, on which judgment was rendered.’ An appeal was taken from the judgment so rendered to the appellate court. The appellate court has affirmed the judgment, and the present appeal is prosecuted from such judgment of affirmance.

The first and second instructions given for the plaintiff are as follows: ‘(1) If you believe, from the preponderance of the evidence, that plaintiff had car furnished him by defendant to be loaded with hogs for shipment over defendant's road, and at time of alleged injury in first count plaintiff was loading or fastening said car, it became the duty of defendant to exercise due care to prevent doing personal injury to plaintiff while engaged in loading car; and if you believe, from a preponderance of evidence, at time of injury plaintiff was rightfully in car, in exercise of due care and caution for his safety, such as a reasonably prudent man would exercise under like circumstances, and that defendant, by its employés, negligently or willfully ran an engine against said car upon which plaintiff was, thereby knocking him off and injuring him, then your verdict should be for plaintiff in such sum as, from all the evidence, you believe he is entitled to receive. (2) If you believe, from a preponderance of evidence, plaintiff has established every material allegation of his declaration, your verdict should be for plaintiff, and you should award him such damages as from all the evidence you believe he is entitled to receive.’

Instructions 6 and 7, as asked by defendant and as modified by the court, are as follows: ‘(6) If you believe, from the evidence, that Anderson saw the approach of the engine and cars against the one in which his hogs were contained, then he would not be justified or authorized in law to take the risk of remaining in or on the car to prevent his hogs from eacaping.’ The court refused to give the instruction as asked, but modified the same by inserting the words in italics, and gave it as modified, as follows: ‘If you believe, from the evidence, that Anderson saw the approach of the engine and cars, and that they were about to strike against the one in which his hogs were contained, and if you further believe, from the evidence, that the plaintiff was in a position he knew to be perilous to his safety from such contact, then he would not be justified or authorized in law to take the risk of remaining in or on the car to prevent his hogs from escaping.’ Defendant asked the following instruction, which the court refused to give as asked, but modified the same by inserting the part in italics, and gave it as modified, as follows: ‘(7) In this case you are instructed that it was Anderson's duty to use due care and caution to avoid being injured. The danger of his hogs escaping from the car, if you believe, from the evidence, there was danger, did not authorize him to omit the use of due care and caution in order that he might prevent the escape of the hogs. If you believe, from the evidence, that he knew the danger was imminent, and had opportunity to prevent injury to himself, it was his duty to do so. If, under such circumstances, he chose to take the risk of any injury to himself to prevent the escape of his hogs, such risk was his own, and the defendant is not liable for any injury thus received.’

The instructions given by the court for defendant are as follows: ‘(1) The court instructs you it is the duty of all persons being upon tracks of railroad over which engines and cars are moved to use all reasonable care for their safety. If in transaction of business of a railroad company an injury from moving car results to a person on track who is not in exercise of that care and prudence a reasonably prudent man would take for his own safety, there can be no recovery against company for such injury. (2) In this case, before plaintiff can recover, he must show, by a preponderance of evidence, first, that he received the injury mentioned in the declaration; that it was caused by the negligent or willful act of defendant's servants while plaintiff was in exercise of reasonable care for his safety. (3) Defendant, in furnishing car, did not become an insurer against accidents to Anderson in loading his hogs. It only became liable for negligent acts of its servants in management and operation of its trains. If you believe, from the evidence, that Anderson omitted to use due care and caution to prevent injury to himself, or was guilty of any negligece contributory to his alleged injury, he cannot recover, and your verdict should be for defendant. (4) Due care and caution, as used in these instructions, means such care and caution that a prudent man would use under like circumstances. (5) Contributory negligence is where both parties are negligent. If you believe, from the evidence, plaintiff at time was not using due care and caution for his safety, such as a reasonably prudent man would use under similar circumstances, your verdict must be for defendant.’

Instructions asked by defendant, and refused, are as follows: ‘(8) If you find or believe, from the evidence, that plaintiff, Anderson, had opportunity to avoid the alleged injury, it was his duty to have so done, and it was no excuse for him that he did not try to avoid such injury for fear of the escape of his hogs. (9) Unless you find, from preponderance of the evidence, that defendant was grossly negligent in handling its cars at the time of the alleged injury to plaintiff, your verdict must be for defendant. (10) Though the jury may believe, from the evidence, that plaintiff was rightfully on track of defendant's road loading his stock, or trying to shut the door of the car in which the stock had been placed for shipment, yet if the evidence further shows that plaintiff was aware that an engine and cars of defendant were being backed towards his stock car in time for him to get out of the way, it was his duty to have done so, and if the evidence shows plaintiff neglected such duty, and the injury resulted to him in consequence thereof, and which might have been avoided by precaution on his part, he cannot recover in this case, and the verdict should be for defendant.’

Phillips, J., dissenting.Wood Bros. (John G. Drennan, of counsel), for appellant.

S. F. Gilmore and G. F. Taylor, for appellee.

MAGRUDER, J.

1. It is assigned as error by the appellant company that the court gave certain instructions for appellee, and refused certain instructions asked by appellant, and gave certain instructions asked by appellant after the same had been modified by the court. It is contended by the appellant that the first instruction given for the appellee, the plaintiff below, is erroneous, under the facts of the case. It is contended that the first instruction given for the appellee is objectionable, because it permits the jury to determine whether or not the appellee was in the exercise of due care and caution for his own safety. Appellant takes the ground that the acts of the appellee constituted negligence per se, and that, therefore, appellee was not entitled to recover for the injury received by him. It is charged that appellee stepped from a place of safety onto the freight car, in which he had loaded his hogs, for the purpose of protecting his property while the local freight train was backing up against said car. The objection thus assumes that the appellee stepped upon or into the car solely for the purpose of preventing his hogs from leaving the same, and thereby of protecting his property. There is testimony tending to show...