Pittsburgh, Cincinnati & St. Louis Railway Co. v. Goss , 1883 Ill. App. LEXIS 128 ( 1883 )

McAllister, P. J.

The evidence on the trial tended to show that when the plaintiff below and Hefferman went upon the railroad track, at the time in question, with a handcar, encumbered as theirs was, and started in the manner they did, just ahead of a usual railroad train upon the'same track, they carelessly and recklessly placed themselves in a position of danger.

It was a question in issue in the case whether or not the plaintiff was guilty of negligence which contributed to the injury for which he sought to recover, and if he were, what was the degree of that negligence; was it slight, ordinary or gross. Upon this question the court instructed the jury, “that, in determining the question of the degree of negligence or care on the part of the plaintiff, they have the right to take into consideration his situation, surroundings and conduct after he discovered the defendant’s train approaching, and j ust before and at the time the accident occurred, as shown by the evidence in the case.”

That instruction, in fact, limits the jury in the range of their inquiry into facts and circumstances legitimately bearing upon the question submitted. And the jury would be justified by the language used, in inferring that the court intended to exclude from their consideration all the evidence respecting the manner and circumstances of plaintiff’s starting out with the hand-car, just ahead of defendant’s train, which plaintiff must have known was about to start.

It was clearly improper for the court, by that instruction, to thus single out and limit the jury to a consideration of the conduct of the plaintiff and attending circumstances, after the time he discovered the approaching train, and immediately preceding the accident. C. B. & Q. R. R. v. Colwell, 3 Bradwell, 545; Burling v. Ill. Cent. R. R. 85 Ill. 18.

We are of opinion after a careful consideration of all the evidence that the court erred in not granting the motion of defendant below for a new trial, because, in addition to the error in giving the above instruction for the plaintiff below, the evidence introducd in his own behalf clearly shows that he was guilty of such a degree of contributory negligence as to bar a recovery.

Waiving all consideration of the circumstances attending his going upon the track, he saw the train approaching at a sufficient distance away to have enabled him and Hefferman, his companion on the hand-car, to have stopped it, and taken the car off the track in safety, even encumbered as it was, before the approaching train could reach them. Hefferman proposed doing so, but the plaintiff refused, and persisted in continuing on, not only iri disregard of the instructions he had received from his superior, Duggan, but in disregard of the dictates of common prudence for his own personal safety. Chicago & N. W. R’y Co. v. Bliss, Adm’x, etc., 6 Bradwell, 411; Ill. Cent. R. R. Co. v. Modglin, 85 Ill. 481.

There was no evidence of a willful tort on the part of the persons having the management of the colliding train. Therefore, if the plaintiff was guilty of ordinary neglect, or a want of ordinary care, such as reasonably prudent persons would exercise under the same circumstances, and there was a proximate connection between such negligence of the plaintiff and the injury complained of, the doctrine of comparative negligence could have no application to the case. And, in the absence of evidence showing the injury to be the result of a willful tort, there could be no recovery. C. B. & Q. R. R. v. Johnson, Adm’r, 103 Ill. 520.

The judgment of the court below will be reversed and the cause remanded.

Beversed and remanded.