Illinois Iron & Metal Co. v. Weber , 196 Ill. 526 ( 1902 )

Mr. Justice Cartwright

delivered the opinion of the court:

Appellee recovered a judgment for $1475 in the circuit court of Cook county against appellant for a personal injury. The evidence at the trial was, in substance, as follows: Plaintiff was a newsboy, between eleven and twelve years old, and his stand was at Dearborn and Monroe streets, in the city of Chicago. He was going from his home, about four miles distant, to his «place of business. At Twenty-second street and Blue Island avenue, by permission of the driver, he got on a wagon loaded with brick. He did not take a seat with the driver or upon the load, but stood up on the rear of the wagon behind the box and held on to the hind end-gate of the wagon. As the wagon went north on Halsted street it was one of a procession of loaded teams in a street car track. The next wagon behind was owned by the defendant and loaded with five tons of metal. The brick wagon stopped at a street crossing to allow a street car to pass, and the wagon of defendant was about ten feet behind. The testimony for plaintiff was that defendant’s driver made no attempt to stop until close to the brick wagon, when he pulled his horses up. The evidence for defendant was that the brick wagon backed up. At any rate, defendant’s team, in attempting to stop or in pulling back, raised the end of the pole above the platform where the boy stood. When moving along or standing still the pole hung low, but when the horses pulled back on the chains attached to the end it was raised, and the end of the pole struck the calf of plaintiff’s leg, inflicting a flesh wound which required seventeen stitches. Plaintiff was taken to the county hospital and stayed there from Friday until the next Wednesday. He was confined to his bed at home for about six weeks and walked on crutches about six weeks. It was more than three months after the accident before he could go to work. At the time of the trial he was accustomed to walk four miles every day from his home to his place of business down town. He had been in the paper business since he was nine years old, and had been in the habit of riding down town on wagons.

Plaintiff requested the court to give to the jury, and the court gave, the following instructions, purporting to present the law applicable to his case:

“If the jury believe and find, from the evidence, that plaintiff, while in the exercise of ordinary care for a boy of his age, was injured by and in consequence of the negligence of the defendant, as charged in the declaration, then you should find the defendant guilty.

“If you believe and find, from the evidence, that plaintiff was exercising ordinary care for a boy of his age, and that the wagon of defendant which struck plaintiff could have been stopped by the driver of the defendant in charge of the wagon, by the exercise of ordinary care on his part, in time to prevent injuring the plaintiff after he (the driver) became aware or might have become aware (by the exercise of ordinary care) of plaintiff’s imminent danger of being struck by said wagon, then you should find the defendant guilty.

“The court instructs the jury that if you find for the plaintiff you will be required to determine the amount of his damages.

“In determining the amount of damages the plaintiff is entitled to recover in this case, if any, the jury have a right to, and they should, take into consideration all the facts and circumstances as proven by the evidence before them; the nature and extent of plaintiff’s physical injuries, if any, so far as the same are shown by the evidence; his suffering in body and in mind, if any, resulting from such physical inj uries, and such future suffering and loss of health, if any, as the jury may believe, from the evidence before them in this case, he has sustained or will sustain by reason of such injuries; any loss of timé and inability to work and earn a livelihood for himself after he attains the age of twenty-one (21) years, if any, which the jury may believe, from the evidence, he will sustain on account of such injuries, and may find for him such sum as in the judgment of the jury, under the evidence and instructions of the court in this case, will be a fair compensation for the injuries he has sustained or will sustain, if any, so far as such damages and injuries, if any, are claimed and alleged in the declaration.”

These were all the instructions given at the request of the plaintiff or assuming to state the grounds upon which a recovery could be had. The first two instructions each directed the jury to find the defendant guilty, provided they should believe, from the evidence, the existence of certain facts. One of the essential facts which the law required to be found was that the plaintiff was in the exercise of ordinary care for his own safety, and each of those instructions informed the jury that the fact was proved if he was in the exercise of ordinary care for a boy of his age. They directed the jury to return a verdict for the plaintiff if they found he was in the exercise of ordinary care for a boy of his age and the defendant was negligent and the injury resulted. That was not a correct rule of law, since the question of care was not to be determined alone by the plaintiff’s age, but also from his intelligence, experience and ability to understand and comprehend dangers and care for himself. The case was one in which the defendant was entitled to correct instructions upon that question. It was a question whether plaintiff was not guilty of negligence in riding where he did, in a procession of teams, outside of the box, behind the end-gate of the wagon. The position was a dangerous one, not provided or used for passengers or intended for such use. Plaintiff had a right to ride on the wagon with the driver’s consent, but it was his duty to use reasonable care for his own safety. There was a string of heavily loaded teams in the car tracks, where it was difficult, if not impossible, to turn out, and the difficulty and danger in stopping when one of a procession stops is matter of common knowledge. Cases cited as to the liability of common carriers of passengers where a car is full and a passenger rides upon the platform have no bearing on this question. Passengers are accustomed to be upon platforms and are sometimes compelled to ride there, and different rules are applied to a common carrier from those governing parties not in that relation. There was no necessity whatever for the plaintiff assuming the position that he did. These facts were not controverted or in dispute, but are gathered from his own testimony. If the damage to the plaintiff was caused by his own negligence in assuming such a position he could not recover. In determining that question his age was to be taken into account, but it could not be said, as a matter of law, that he was too young to exercise any care for his personal safety or that he was incapable of negligence. Unquestionably, he was capable of exercising some degree of judgment and discretion and some degree of care for his own safety. He had lived in the city and been engaged in business and'was accustomed to ride on wagons. Judge Thompson, in his Commentaries on Law of Negligence, (vol. 1, sec. 309,) says: ' “Two lads of equal age and natural capacity, one of them raised in the country and the other in the city, might approach a given danger, and the one would be perfectly competent to care for himself while the other would be helpless in the face of it. Therefore the capacity, the intelligence, the knowledge, the experience and the'discretion of the child are always evidentiary circumstances—circumstances with reference to which each party has the right to introduce evidence, which evidence is to be considered by the jury.” The rule established by our own decisions is, that age is not the only element to be considered, but that intelligence, capacity and experience are also to be taken into account. (Weick v. Lander, 75 Ill. 93; City of Chicago v. Keefe, 114 id. 222; Illinois Central Railroad Co. v. Slater, 129 id. 91.) The error was not cured by any instruction in the case, and could not be. It has always been held that where the court directs a particular verdict if the jury should find certain facts, the instruction must embrace all the facts and conditions essential to such a verdict. It is not required that one instruction shall state all the law, and instructions may supplement each other and supply defects, but where an instruction directs a verdict upon certain conditions it must state the conditions correctly. Even where instructions may supplement each other, each one must state the law correctly as far as it goes, and they should be in harmony, so that the jury may not be misled. They are not able to select from contradictory instructions one which correctly states the law. It is obvious that where the jury were told to find the defendant guilty if they found that plaintiff was in the exercise of ordinary care for a boy of his age, even if some other rule was given in another instruction, it would be impossible for the jury to decide which one to follow and impossible for us to determine which one they did follow. The jury were told to find defendant guilty if they found certain facts, and the defective instructions were not cured by others. Quinn v. Donovan, 85 Ill. 194; Illinois Linen Co. v. Hough, 91 id. 63; Wabash, St. Louis and Pacific Railway Co. v. Rector, 104 id. 296; Wabash, St. Louis and Pacific Railway Co. v. Shacklet, 105 id. 364; Hoge v. People, 117 id. 35; Gorrell v. Payson, 170 id. 213.

The last of the above instructions was the only one given on the question of damages, and it directed the jury, in determining the amount of plaintiff’s damages, to take into consideration any loss of time and inability to work and earn a livelihood for himself after he attains the age of twenty-one years, if any, which the jury may believe, from the evidence, he will sustain on account of such injuries. There was no evidence on which to base that part of the instruction. The plaintiff was between eleven and twelve years old when he was hurt, and it would be between nine and ten years before be would reach the age of twenty-one. The wound was quite extensive, but his stocking was not broken or torn. The wound had healed, leaving a considerable scar, and the plaintiff was in the habit of walking down town four miles every day. He was then fifteen years old and said that the leg still hurt him if he walked far. No one testified as to probabilities for the future, and there was nothing which would justify a conclusion that plaintiff would be unable to work and earn a livelihood six years later. To invite the jury, by an instruction, to speculate on the bare possibility of permanent disability, without any evidence whatever that such a result was probable, was wrong. The instructions given at the request of the plaintiff were all erroneous.

The judgments of the Appellate Court and the circuit court are reversed and the cause is remanded to the circuit court.

Beversed and remanded.