Jurkiewicz v. Illinois Central Railroad , 145 Ill. App. 44 ( 1908 )

Mr. Presiding Justice Smith

delivered the opinion of the court.

At the close of all the evidence the court refused to give a peremptory instruction in favor of appellant, and this is relied upon as error. It is contended that there was no evidence before the jury tending to show appellant guilty of negligence as alleged in the declaration.

The evidence of Zellebuski, Mrs. Krenieki, Mrs. Ruczynski and of appellee tends to show that when the train stopped at the Kensington station quite a large number of people left the car in which appellee had been riding, and that Zellebuski, who was in the lead of the party with appellee, followed closely after people who were leaving the same car, and he was compelled to wait for them; that the rest of the party, including appellee, followed closely after him. After Zellebuski reached the station platform he saw the conductor give the signal to start the train and he looked back to see his sister who was following, and observed that she had alighted before the train started. As Mrs. Ruczynski was stepping off, the train started and threw her to the platform. Appellee was just behind her and was also thrown down. The evidence of these witnesses tended to prove the allegations of the declaration, in our opinion, and the court, therefore, did not err in refusing the peremptory instruction, unless the evidence shows conclusively that appellee was guilty of contributory negligence.

On the question of appellee’s contributory negligence the testimony of all the witnesses above mentioned has a bearing, and might properly be considered by the jury. The testimony of appellee tends to show that without delay she started to leave the car when the train stopped, and that she followed closely the other passengers out of the car. She had a right to assume that ample time would be given for her to safely alight, although many people were leaving the car ahead of her. Her movements were necessarily controlled by those ahead of her, and hence her delay, if any there was, may have been caused wholly by other passengers. She testified that she did not see the car start or feel it start or feel anything to indicate that it was moving.

From a review of all the evidence we think it was a question for the jury, on the evidence in the case, to determine whether appellee, by her negligence, if any, contributed to the injury sustained by her, and that therefore the court did not err in leaving that question to the jury.

In our opinion the verdict of the jury is not so manifestly against the weight of the evidence that we ought to set it aside on that ground.

It is urged that the trial court erred in refusing to give to the jury instructions numbered respectively 15,16,17,18 and 19 requested by appellant.

An examination of the instructions given by the court shows, in our opinion, that the jury were fully instructed upon all the substantial issues in the case. It appears further that refused instructions 15, 16, 17 and 19 were substantially covered by other instructions given.

Refused instruction No. 18, requested by appellant, is as follows:

“18. The court instructs the jury that while railroad companies are required to announce stations approached or reached, and to give passengers a reasonable time in which to leave the train, they are not required to see that passengers do in fact depart from the train upon arriving at their destination. If, therefore, you believe from the evidence in this case that the defendant gave the plaintiff a reasonable time and opportunity to alight from the train in question; and if you further believe from the evidence that when the employes of defendant started said train they did not know that any passengers were alighting therefrom, in such case it is your duty to find the defendant not guilty.”

In our opinion this instruction does not correctly state the law applicable to the facts of this case. It would have told the jury, if given, that under no circumstances would appellant be guilty of negligence in starting its train while appellee was in the act of alighting therefrom, if the train had stopped a sufficient length of time to permit appellee to alight, unless the employes of appellant knew appellee was alighting. It leaves out of consideration the important element that appellant owed to appellee the utmost or highest degree of care, skill and diligence for her safety consistent with the mode of conveyance employed; and that appellant’s servants in charge of the train were required to know, if by the exercise of due care, caution and diligence they could know, that appellee was attempting to alight from the train, before they started it. North Chicago St. R. R. Co. v. Cook, 145 Ill. 557. A carrier of passengers may not relieve itself from liability, in cases like this, by proving that its trainmen did not know passengers were alighting. The instruction was properly refused.

Finding no error in the record the judgment is affirmed.

Affirmed.