(after stating the facts.) It is earnestly insisted by learned counsel for appellant that the court should have taken the case from the jury by a peremptory instruction to return a verdict in favor of the defendant, on the ground that the plaintiff was guilty of contributory negligence. We do not, however, think that, under the evidence presented, it was a case for the court to say as a matter of law that the plaintiff was guilty of negligence. If it be conceded that it was negligent for plaintiff to alight from the moving car under the circumstances shown, that was not the proximate cause of the injury. He was not injured in alighting from the car or by reason of having done so in the manner shown. If he was guilty of negligence at all which contributed to” the injury, it was by going upon the railway track without observing the proper precautions of looking and listening for the approach of cars. This question was fully submitted to the jury on instructions asked by both parties, and there was evidence to justify the verdict of the jury. The plaintiff testified that when he was about to alight he got on the steps of the car and stood facing the direction the.car was moving, and that he looked and listened for an approaching car on the other track, and that after he alighted and before attempting to cross the track he faced the only direction from which a car might be expected and looked and listened, and that, neither seeing nor hearing the approach of a car, he attempted to cross. The evidence did not present a case of a man emerging from behind a moving car or other obstruction on to a railway track without awaiting an opportunity to look or listen for the approach of a car.
The court also properly instructed the jury upon all the other questions of contributory negligence. Taking the instructions as a whole, they were fair to the defendant, and put the case to the jury in as favorable an aspect as the law of the case warranted.
It is urged-that the court erred in submitting to the jury as an element of damage the “pecuniary loss” sustained by plaintiff, when the evidence established no injury of that character. The instruction given at plaintiff’s request on the -measure of damages concluded with the words “and the pecuniary loss-, if any is shown by the testimony, sustained by reason of inability to attend to his business or profession.” There was no evidence of any such damage, but this part of the instruction should have been specifically objected to. A general objection to the instruction as a whole was not sufficient. '
Counsel for appellant also contend that the court erred in submitting to the jury instructions upon all the charges of negligence in the complaint. They argue that the instructions were abstract, as there was no evidence upon which they could be based. We find that there was evidence sufficient to base instructions upon each of the charges of negligence except the first involving the question whether the motorman who operated the car which struck plaintiff was incompetent and known to be such by the defendant. There was no evidence of that fact, and the court should not have submitted that question to the jury. But the’error was not prejudicial, for the reason that the jury, by the verdict returned, necessarily convicted the motorman of negligence. A finding of incompetency of the motorman could not have resulted in a verdict for the plaintiff, if the jury obeyed the instructions of the court, unless they found that it contributed to plaintiff’s injury, and it could not have so contributed unless the motorman was guilty of negligence in one of the particulars charged. The error was therefore harmless.
Finding no prejudicial error in the record, the judgment must be affirmed. It is so ordered.