Springfield Consol. Ry. Co. v. Hoeffner

• Decision Date: 24 October 1898
• Citation: 175 Ill. 634,51 N.E. 884
• Parties: SPRINGFIELD CONSOL. RY. CO. v. HOEFFNER.
• Court: Illinois Supreme Court

175 Ill. 634

51 N.E. 884

SPRINGFIELD CONSOL. RY. CO.

v.HOEFFNER.

Supreme Court of Illinois.

Oct. 24, 1898.

Appeal from appellate court, Third district.

Action by Libby Hoeffner against the Springfield Consolidated Railway Company. There was a judgment for plaintiff, which was affirmed in the appellate court (71 Ill. App. 162), and defendant appeals. Affirmed.Wilson & Warren, for appellant.

E. E. Bone and Orendorff & Patton, for appellee.

This is an action on the case for a personal injury, brought by the appellee against the appellant company. Plea of the general issue was filed, and the trial in the circuit court before the judge and a jury resulted in a verdict in favor of the appellee. Judgment was rendered upon the verdict. An appeal was taken to the appellate court, and the judgment of the circuit court has been affirmed. The present appeal is taken from such judgment of affirmance.

The facts are substantially as follows: On the evening of September 27, 1895, the appellee and her brother-in-law, one John H. Hoeffner, together attended a show on exhibition at the Springfield Fair Grounds. About half past 9 o'clock they there took an open trailer, following and attached to a closed car of the defendant company, used as a motor, to return. When the conductor came to the appellee to collect her fare, she notified him that she wished to get off at the crossing of Ninth and Reynolds streets in Springfield, and requested him to stop the car there to enable her to do so; and again, when about four blocks from that crossing, she told the conductor, in reply to a question from him, that she desired to get off at the corner of Ninth and Reynolds streets. On reaching the crossing, the speed of the train was slackened so that it was traveling very slowly. Her brother-in-law alighted on the north side of the street, the cars going south. As the cars continued to slacken their gait and go more slowly, she arose, and prepared to alight when the car should stop on the other side of the crossing. She stood with one foot on the car and the other on the footboard, and was holding onto the brass arm of the seat. While she was in this position, and while it seemed that the car was about to stop, and she was about to alight, the car, without stopping, started forward with a sudden and violent jerk, breaking her hold, and throwing her upon her back, so as to cause the injuries complained of, the most serious of which was to her spine. Her brother-in-law came up to her at once, and asked if she was hurt, to which she answered, ‘Yes.’ It was with difficulty that she reached her home, about four blocks distant, where she immediately went to bed, and sent for her family physician, who came at about 11 o'clock, and upon examination ascertained, and on the trial testified, that she was seriously hurt.

MAGRUDER, J. (after stating the facts).

1. The first complaint made by counsel for appellant in their brief is that the first instruction given on behalf of the appellee by the trial court was erroneous. The instruction thus complained of is as follows: ‘The court instructs the jury that if you believe, from all the evidence in this case, that the plaintiff became and was a passenger upon a car of defendant, and that her fare was paid to the conductor, and that the plaintiffgave to the conductor on such car reasonable notice of her desire to get off of said car at the corner of Ninth and Reynolds streets, as alleged in her declaration, it then and there became and was defendant's duty to stop said car at said place, upon arriving at the same, a sufficient length of time to enable plaintiff to alight therefrom in safety; and if the jury further believe, from all the evidence, that the defendant thereafter ran its said car to the said corner of Ninth and Reynolds streets, and was then and there in the act of slowing up or stopping said car, and that the plaintiff was then and there exercising all due care and caution for her own safety, and that while so exercising said care and caution she was preparing to alight from said car when it should come to a stop, and that such act or acts by her of preparing to alight at the time, under all the circumstances and in the manner shown by the evidence, were not negligence or carelessness on her part, and that the defendant then and there did not so stop the said car as that the plaintiff could safely alight therefrom, but suddenly started said car in such manner that it thereby then and there threw the plaintiff to the ground, and that such starting of the car was negligence on the part of the defendant, and that the plaintiff was thereby injured as charged in her declaration, and that plaintiff was during all the time in the exercise of due care and caution for her own safety, then the defendant would be liable to the plaintiff for such injury, and in such case you will find for the plaintiff.’

The first objection made to this instruction is upon the alleged ground that it attempts to sum up all the facts in behalf of the appellee which the evidence tends to prove, and omits all the facts which the evidence tends to prove in behalf of appellant. In other words, appellant's counsel invoke against the correctness of the instruction the rule, frequently announced by this court, that an instruction is erroneous which sums up all, or a part of, the facts the evidence tends to prove on one side, and omits all on the other. Such an instruction is regarded as calculated to mislead the jury, inasmuch as it tends to impress upon their minds that the facts recited are the only ones that are important in the case. Pennsylvania Co. v. Stoelke, 104 Ill. 201. While the rule thus laid down is undoubtedly correct, yet the doctrine which holds an instruction vicious when it attempts to summarize the facts or elements in a case essential to a recovery, but fails in some important particular, does not apply to an instruction which merely fails to embody in it evidence tending to establish a distinct antagonistic theory. ‘All the law requires is that an instruction, based upon some particular hypothesis warranted by the evidence, which undertakes to summarize the elements in the cause essential to a recovery upon that theory, must not omit any essential matter.’ City of Chicago v. Schmidt, 107 Ill. 186. In Railroad Co. v. Eggmann, 159 Ill. 550, 42 N. E. 970, we said: ‘This court has frequently criticised the practice of giving instructions thus summarizing the case. It has, however, never held such an instruction to be reversible error when it embraced all the elements essential to a recovery, omitting nothing material.’ We are of the opinion that the first instruction given for the appellee is not liable to the charge thus made against it.

The particular respect in which the instruction is urged to be obnoxious to the objection here urged is said to lie in the fact that it ignores the evidence tending to prove that the appellee stepped from the car before it came to a stop. It is said that one ground of defense set up by the appellant in the court below was that the plaintiff was guilty of contributory negligence, because she stepped off the car while it was moving. It has been held by this court that it is not negligence per se for a passenger to board or alight from a street car operated by horse power while it is in motion (Railway Co. v. Williams, 140 Ill. 275, 29 N. E. 672); also, that it is not negligence per se for a passenger to board or alight from a street car propelled by electricity while it is in motion (Railway Co. v. Meixner, 160 Ill. 320, 43 N. E. 823); also, that it is not negligence per se for a passenger to get on or off a moving street car, whose motive power is a cable (Railroad Co. v. Wiswell, 168 Ill. 48 N. E. 407). In all such cases of getting on or off street cars while they are in motion, whether such cars are propelled by horse power, electricity, or cable, the question whether or not the passenger has used due care for his safety, or whether or not he has been guilty of contributory negligence, is a question of fact to be submitted to the jury, and to be determined by them from the circumstances surrounding the case. The first instruction here complained of told the jury that they must believe from all the evidence that the appellant ran its street car to the corner of Ninth and Reynolds streets, and was then and there in the act of slacking up or stopping said car, and that the appellee was then and there exercising all due care and caution for her own safety, and that, while so exercising said care and caution, she was preparing to alight from said car when it should come to a stop, and that such act or acts by her of preparing to alight at the time, under all the...