Chicago & Eastern Illinois Railroad v. Coggins , 212 Ill. 369 ( 1904 )

Mr. Justice Scott

delivered the opinion of the court:

Appellants first contend that under their twelfth instruction, which was given to the jury, the court conditioned the right of plaintiff to recover herein upon the existence of the relation of carrier and passenger between the parties, thus limiting the issues to be decided by the jury; that there is no evidence in the record tending to show such relation, and for that reason the judgment should be reversed. Appellee, having obtained leave, filed in this court a certified copy of appellants’ brief and argument in the Appellate Court. It appears therefrom that this point was not made in that court, consequently it cannot be considered here.

Appellants also question the action of the circuit court in modifying-, and in giving as modified, their eleventh instruction, .and in refusing their fourteenth and fifteenth instructions. The eleventh instruction, as requested, read as follows:

“The plaintiff cannot recover in this case unless it is proved, by a preponderance of the evidence, not only that the defendants were guilty of the negligence charged against them in the plaintiff’s declaration, or some count thereof, but that Coggins was using reasonable care for his safety at the time of the accident; and if the jury shall find, from the evidence, that Coggins did not use reasonable care to ascertain whether any train zvas approaching from the north, and carelessly placed himself on or alongside of the track on which the south-bound train was running so near to it as to expose himself to the danger of being struck by the said train, or carelessly stepped in front of said train as it had almost reached him, then the plaintiff- cannot recover, and their verdict should be for the defendants.”

The court modified the instruction by striking out the portion italicized and inserting in lieu thereof the following: “Or ordinary care for his own safety immediately before and at the time of the accident complained of, then the plaintiff cannot recover, and their verdict should be for .the defendants,” and gave the instruction so modified to the jury. It is not urged that there was error in giving the instruction as modified, except it is said that the use of the term “immediately before and at the time of the accident,” restricted the jury to a consideration of the conduct of the plaintiff only after he had placed himself in a dangerous position, and would lead them to disregard his conduct prior thereto, even though the evidence showed that he was guilty of negligence in having placed himself in a position of danger. As appellants used the expression “at the time of the accident,” in drawing the first part of the instruction, to specify the period during which Coggins was required to use reasonable care, they are not in a position to urge this objection. But the point is without merit in any event. (Lake Shore and Michigan Southern Railway Co. v. Johnsen, 135 Ill. 641; Cleveland, Cincinnati, Chicago and St. Louis Railway Co. v. Keenan, 190 id. 217.) Appellants contend, however, that, as given, this instruction is a mere abstract proposition of law, and that there was error in modifying it, because they were entitled to have the principle therein stated applied to the facts of the case and to have the jury’s attention directed to the plaintiff’s failure “to take any means to ascertain whether any trains were approaching before appellee entered upon the trackand it is urged that appellants had the right to have the jury pass upon the question whether appellee used reasonable care to ascertain whether any train was approaching from the north, and that they were entitled to an instruction calling the attention of the jury to the fact that it was the duty of appellee, not merely to use reasonable care “to avoid injury by the train after discovering its approach, but also to exercise reasonable and ordinary care to ascertain whether any such train was approaching.” We are inclined to the view that this instruction, as requested, violates the rule that “an instruction should not draw the attention of the jury to particular facts.” (Chapman v. Cawrey, 50 Ill. 512; Drainage Comrs. v. Illinois Central Railroad Co. 158 id. 353.) It was apt to mislead the jury by emphasizing the duty of plaintiff with regard to the exercise of due care to avoid danger from the particular train approaching from the north as he crossed the tracks toward the north-bound train. It was his duty to exercise reasonable care for his personal safety. His mind would naturally be intent upon reaching the north-bound train and entering it in safety before it began moving. Trains might pass either north or south upon the tracks. Teams and vehicles of various kinds might come upon the crossing. It was his duty to use reasonable care to avoid danger from trains passing in either direction and from every other agency from which injury might be received, and it would have been proper to have so instructed the jury; but to call their attention particularly to his duty to exercise such care to ascertain whether'- any train was approaching from the north, was to call their attention to the fact that if he had stopped as soon as he came upon the Chicago and Western Indiana tracks and turned and looked to the north he could have seen the approaching train and avoided injury, and might have led the jury to conclude that a failure to take that course would necessarily bar a recovery.

In Chicago, Burlington and Quincy Railroad Co. v. Gunderson, 74 Ill. App. 356, it was held that an instruction was erroneous which advised the jury that a person going upon a railroad track “must look both ways, listen for trains and avoid being injured by them, if he can do so by the exercise of reasonable care and caution.” The case came to this court, where the judgment of the Appellate Court was affirmed in Chicago, Burlington and Quincy Railroad Co. v. Gunderson, 174 Ill. 495. We regard the instruction under consideration there and the one now before us as alike in principle.

No error was committed in refusing the fourteenth and fifteenth instructions asked by appellants, as each was objectionable in the same respect as was the eleventh in its original form.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.