Chicago Terminal Transfer Railroad v. Gruss , 200 Ill. 195 ( 1902 )

Mr. Justice Carter

delivered the opinion of the court:

We are of the opinion that the evidence tended to prove that appellant was guilty of wantonly backing its train against the appellee and injuring her, as charged in the declaration. It appears that the train ran back a distance of one hundred feet after the brakeman had discovered and knew her perilous position on the bridge. As the engineer testified, he could have stopped the train within thirty feet after having received a signal to stop. It was a question for the jury, under all the circumstances in evidence, whether appellant’s servants in charge of the train were guilty of willfulness or wantonness or not. If they were, the liability of the appellant would follow, whether appellee was a trespasser or not in going upon the bridge. (Martin v. Chicago and Northwestern Railway Co. 194 Ill. 138, and cases cited.) The instruction to find for the defendant was properly refused.

Under the charge of negligence, merely, the court refused to give an instruction declaring, as a matter of law, that appellee was a trespasser. There was evidence that a large number of the passengers on this particular excursion train walked across the bridge after they arrived at Blue Island, and that they returned the same way. Whether appellee was on the track by an implied permission of appellant, or was a trespasser, was, under the circumstances, a question for the jury to decide, under proper instructions from the court. A number of instructions on this question were given for appellant, leaving the question to the jury. There was no error in refusing to give the instruction that she was a trespasser.

The substance of the other instruction asked by appellant and refused is embodied in the instructions that were given.

Appellant objected to the giving of the sole instruction that was given for appellee. This instruction related solely to the question of damages, and is almost identical with plaintiff’s third instruction set out in full in Cicero and Proviso Street Railway Co. v. Broiun, 193 Ill. 274, and the same objection is now urged against it that was urged in that case. The same instruction, in substance, has been before this court a number of times and has uniformly been approved. Cicero and Proviso Street Railway Co. v. Broiun, supra, and-cases cited.

Finding no error in the record the judgment is affirmed.

Judgment affirmed.