Chicago, Rock Island & Pacific Railway Co. v. Clark , 108 Ill. 113 ( 1883 )

Mr. Justice Walker

delivered the opinion of the Court:

Appellee brought this action in the circuit court of Peoria county, against appellant, to recover for the death of her husband, J. H. Clark, averred to have been caused by negligence of the railroad company. It appears that deceased was a brakeman in the employment of appellant; that at Davidson’s quarry, near the city of Joliet, he was injured in attempting to couple cars at a side-track and platform for loading cars with stone; that in coupling them he got between the platform and*cars, and his lantern, from some cause, got’ between him and the cars, and it was so pressed against him that he received internal injuries, from which he died. The negligence averred is, that the track was constructed too near or close to the platform; that-the distance between the cars, when on the track, and the- platform, did not exceed ten anches; that on the second day of July, 1879, in the night, Clark, in the line of his duty,' exercising due care, was engaged in coupling a car loaded with stone, and the defendant’s servants in charge of the train handled it so negligently, together with the improper location and construction of the platform, that the train struck Clark with great force, and he was thereby killed. It is averred that deceased did not know of the dangerous character of the place, and was ignorant of the distance or space between the platform and cars, but the defendant knew it was dangerous, but failed to notify deceased of the fact. On a trial in the circuit court, plaintiff recovered a judgment. Defendant appealed to the Appellate Court for the Second District, where the judgment was affirmed, and defendant appeals to this court.

It is first insisted that the circuit court erred in admitting evidence of the habits of deceased as to care, prudence and sobriety. Appellee, in her declaration, averred, as she was required to do, that deceased was in the exercise of due care at the time he sustained the injury of which he died, and as no person was present, or knew how the accident occurred, we think this evidence tended to prove that averment. If he was habitually prudent, cautious and temperate, it tended to prove he was so at the time of the injury, which, with the instinct of self-preservation, would be evidence for the consideration of the jury in determining whether he was in the exercise of care. Had there been witnesses who saw the infliction of the injury, the -jury could then have determined from such evidence whether he was careful or negligent, and in such a case this evidence would not be admissible. When there are no witnesses to describe such an occurrence, the defendant would surely have the right to prove the person was habitually rash, imprudent and intemperate, to repel the presumption that he was in the exercise of proper care at the time he received the injury. If evidence is admissible for any purpose, it must be received, and the party against whom it is admitted, if it tends to mislead on. some other question, is entitled to have it limited, by instruction, -to the purpose for which it is admissible.

It is next urged that the trial court erred in admitting evidence as to the usual mode of coupling and uncoupling cars at that switch. One of the issues being tried was, whether deceased performed his duty with such negligence as to preclude a recovery. He was bound to use care, or no recovery can be had, and what others did or were in the habit of doing did not tend to prove that issue. Such a course may have been careless, or even reckless, and if so, it did not justify him in omitting the observance of care. We therefore think that such evidence did not tend to prove care on the part of deceased, and the court erred in its admission.

It is claimed the first instruction is erroneous. It, among other things, informs the jury that it is the duty of the master ■to inform his servants of all danger in and about the premises where they are required, by his authority, to perform labor. This was manifestly wrong. Railroad employés, as all the books lay down the doctrine, assume the ordinary risks and hazards of the employment. The presumption is that the employe understands the nature and dangers of the employment when he engages in the service, and if not, that he will inform himself. It would be wholly impracticable for railroads and manufacturers to employ men of experience to inform each of the hands that any particular act he is required to perform is dangerous. It would be ruinous to such bodies to hire a person to accompany every brakeman and other employés, to inform them of danger in the performance of every act of duty, or of the danger in the manner of its performance. It is impossible that the law can ever impose such requirements, — and that is what this instruction in substance asserts as a legal requirement.

The instruction further informs the jury, that if the employer knows of such danger, and the employés do not, and are unable to learn the danger by reasonable care and diligenee, and the employer fails to advise the employes of the danger, he is in such case liable for any injury they sustain ; and if the jury believe, in this case, that the stone platform was dangerous, and the defendant failed to advise deceased thereof, and the deceased did not know of such danger, and could not have learned it by the use of reasonable care, and he was thereby injured, from which he died, then the jury should find the defendant guilty. This branch of the instruction is erroneous, and misstates the law. Moreover, there is no evidence tending to prove the company had any notice that the platform was dangerous. On the contrary, it had been used for fourteen years in the same condition it was then in, and many thousand cars had been coupled and uncoupled at that place, and on the same side of the track where deceased was injured, and this was the first accident of the kind that had ever occurred on that switch. But the instruction announces that appellant was liable whether the company knew or not that it was dangerous. It informs the jury that if it w.as dangerous they should find appellant guilty. • This instruction was highly calculated to mislead the jury, and should not have been given.

The fourth of appellee’s instructions is flatly contradictory, and calculated to confuse and mislead. It asserts that if the track and platform were dangerous, and the company, by reasonable care, could have learned the fact, and deceased was without knowledge, and could not, by reasonable care, have learned it was dangerous, and deceased received his injury thereby, they.should find the defendant guilty. If deceased could not learn that the place was dangerous by reasonable care, how can appellant be held liable because it did not learn the fact? Reasonable care only could, when exercised by the company, reach the same results that would be attained by the use of the same care used by deceased. If his care and diligence could not learn that it was dangerous, it is unreasonable to hold appellant liable, when, by the use of the same care, it could not learn, there was danger.

The seventh of appellee’s instructions is loosely drawn, and is - not accurate in its statement of the law. It first asserts that if appellant was guilty of negligence, as averred in the declaration, and if deceased was guilty of negligence, (if they found from the evidence that appellant was guilty of gross negligence,) then it can not relieve itself from liability by showing that deceased was also guilty of negligence, if his negligence was slight as compared with that of appellant. The instruction speaks of negligence, and also of gross negligence, of appellant, and then refers to slight. negligence of deceased as compared with appellant’s negligence. Which degree of negligence of appellant are the jury to compare with negligence of deceased? But above and beyond this,there was no evidence tending to show, gross negligence of appellant. There was therefore.no evidence upon which to base the instruction. It was therefore error to give it.

For the errors indicated the judgment of the Appellate Court is reversed, and the cause remanded.

Jiidgment reversed.