Schaefer v. North Chicago St. R. R. , 82 Ill. App. 473 ( 1899 )

Mr. Justice Sears

delivered the opinion of the court.

It is conceded by counsel for appellee that the instructions as to contributory negligence upon the part of appellant are erroneous. Upon the declaration and the facts here, no question of contributory negligence is involved. The action is not for negligence, but is in trespass and for a willful wrong. Hence the question of contributory negligence does not arise. C., M. & St. P. Ry. Co. v. Doherty, 53 Ill. App. 282.

And if the declaration had been in case, yet the wrong charged being a willful and wanton wrong, the doctrine of contributory negligence of the plaintiff would have no application. L. S. &. M. S. R. R. Co. v. Bodemer, 139 Ill. 596.

But counsel for appellee argue that, although the instructions were erroneous, yet this should not work a reversal, because, it is claimed, the verdict could not have been different upon the facts. In other words, it is contended, in effect, that upon the facts presented, there was nothing to submit to a jury. We can not assent to this contention. It is true that it is the duty of a passenger to submit to the order of a conductor to leave the car, even although such order is unwarranted, and to then look to the carrier for damages for such injury as is thereby sustained. And if the passenger refuses to obey and invites a conflict in the enforcement of the conductor’s order, he can not recover against 'the carrier for injuries received through such conflict, unless the expulsion is done in a wanton manner. C., B. & Q. R. R. Co. v. Griflin, 68 Ill. 499; Penn. R. R. Co. v. Connell, 112 Ill. 295; C. & N. W. Ry. Co. v. Bannerman, 15 Ill. App. 100; C., B. & Q. R. R. Co. v. Wilson, 23 Ill. App. 63; C., R. I. & P. Ry. Co. v. Brisbane, 24 Ill. App. 463; N. C. St. R. R. Co. v. Olds, 40 Ill. App. 421.

But the difficulty in the contention of appellee is, that there is some evidence in this case tending to show that appellant, after refusing to obey the directions of the conductor, and having refused to leave the car, was expelled from the car while it was still moving, and thereby injured. If this evidence was credited by the jury and could be said to create a preponderance of the evidenee in that behalf, then the jury might be warranted in finding that the expulsion was effected in a wanton manner.

We are of opinion that it was proper that the evidence should be submitted to the jury. For the error in the instructions indicated, the judgment is reversed and the cause is remanded.