The preponderance of evidence is not such, on this trial as it was on the former, as to demand the interposition of the court.
The instructions demand the only notice that we are called upon to give this case, and these, being numerous, we shall confine ourselves to such as appear questionable, or have been particularly challenged.
The ninth and fifteenth instructions in the defendant’s series, given by the court, are as follows:
“ 9. That if the jury believe, from the evidence, that the accident and injury complained of happened by reason of the neglect of the engineer in charge of the locomotive attached to the defendant’s (plaintiff’s) train; or to blow his whistle in time; or by reason of the neglect of the conductor to warn the engineer in time; or by reason of the neglect of the brakeman to apply the brakes in season, they will find a verdict for the plaintiff and assess his damages.”
“ 15. That, unless the jury believe, from the evidence, that the passenger cars were full, and that it was a part of the contract that the plaintiff should occupy, during the trip, the baggage car, the mere fact that the plaintiff left that car, and went into the first class passenger car, is not of itself such negligence in the plaintiff as to defeat a recovery in this case.”
The plaintiff asked, and the court refused, the following qualification to the 9th instruction: “ But unless the plaintiff has proved to the satisfaction of the jury that his own carelessness or negligence did not contribute or assist to produce the injury complained of, then the jury should find for the defendant, and the burden of such proof is upon the plaintiff.”
Upon mature reconsideration of the principles of law laid down in this case in 15 Ill. R. 468, we feel compelled by authority of adjudged cases, as well as justice, to approve and reassert them.
The principle contained in the qualification has been questioned and denied, in this case, but more especially its application to passengers. There is, doubtless, a sensible distinction between persons receiving an injury while sustaining this relation to the wrong doer, and those who do not. But that distinction will not wholly destroy its application to passengers, but will only modify the rule for applying it. This distinction was taken in the former decision of this case, 15 Ill. R. 471, when the court say: “ Proof that the defendant was a passenger, the accident and the injury, make a prima facie case of negligence. This is done, and the burden of explaining is thrown upon the plaintiffs.”
Where the plaintiff in the action does not sustain that relation to the defendant, he must, in addition to the accident and his own injury, affirmatively show his own freedom from carelessness or negligence in causing or contributing to produce it.
If the distinction be a sound one, the modification is improperly worded, and should not have been given. It should have been so worded as to throw that proof upon the defendant below.
The 15th instruction is erroneous. The facts, or acts of defendant, recited in it, are withdrawn from the consideration of the jury, and decided by the court, as a question of law, instead of fact. The court say those acts do not constitute negligence or carelessness in defendant. Negligence is a question of fact and not of law; and the court had ho right to determine it. Had the jury found these facts specially—that the passenger cars were not full; that defendant, being directed by the conductor to the baggage car, went into that car without a special contract for passage on that car, and, after riding some distance on it, left it, and went into the first class car—without finding that these facts did or did. not constitute negligence^, under all the circumstances of the case, no court could pronounce any judgment of law upon it, for want of completeness. Negligence is the fact to be found. The acts of the party, and the circumstances under which they were done, are not the fact to be found, but are merely evidences of that main fact. The court has only assumed the province of the jury in assuming that such circumstances and acts as are enumerated in the instruction, are not sufficient proof of the party’s negligence. Had the instruction further assumed that the jury find the conclusion that the court is made to find, then might the court well have said, the right of action is not barred by those facts.
Intimately connected with the giving of this instruction, indeed, the counterpart of it, was in the refusal of plaintiff’s instructions, “ W.” and “A.” They are as follows: “If the jury believe, from the evidence, that the standing upon the platform of cars, or the going about from car to car, by a passenger, whilst the cars are running, are acts of imprudence; and if they further believe that, at the time the cars ran off the track, the plaintiff was so standing or going about, and that such conduct of the plaintiff increased his apprehension of peril, and he was thereby induced to leap from the cars when in motion, and, in consequence of such leap, received the injury, when, had he remained in the cars, he would not have been injured, he is not entitled to recover in this action.”
“ A. If the jury believe, from the evidence, that, at the time the plaintiff took passage on the defendant’s cars at Elgin, he was directed by the conductor to take his place in the baggage car, because there was not room for him in the passenger cars, and that the plaintiff did go on board of the baggage car at the time of starting, and that, whilst on the way from Elgin to Clinton, he left said car without any reasonable cause, and that the injury to the plaintiff happened in consequence of his so leaving the car, then he is not entitled to recover in this action.”
We must ever keep in mind that there might be an accident to the train without an injury to defendant; that there might be such accident and injury from his own negligence, without liability of plaintiff therefor.
In the ninth instruction given for defendant, the court assume that if the accident and injury were occasioned by the omission of plaintiff’s servants to do certain specified acts, plaintiff’s liability would be thereby fixed; and yet the court refuse, in plaintiff’s instruction “ A,” to lay down a similar principle for the discharge of their liability, if a particular act of defendant caused the injury. The two instructions are of precisely like principle. Both, or neither, should have been given.' With each given, the case would have stood so before the jury. It is true, the omission to blow the whistle or warn the engineer, or apply the brakes in time, might have occasioned the accident, and that might have resulted in the injury; but had the defendant remained in the baggage car, he might have been safe, notwithstanding the accident, and so the one instruction might charge the other, and might discharge the plaintiff.
So again of the defendant’s 15th instruction, and the plaintiff’s instruction “ W.” In the former, the court tells the jury that the fact of defendant’s leaving the baggage car and going into the first class passenger car, was not negligence in him under all the circumstances ; and yet the court refuse to add, in instruction “ W,” that if they believe that standing upon the platform of cars, or going about from car to car whilst the cars are running, are acts of imprudence, and that defendant was so standing and going about when the cars ran off the track, and that such conduct increased his apprehension of peril, and induced him to leap from the cars while in motion, from which leap he received the injury, and that had he remained in the cars he would not have been injured, they should find for plaintiff. If the court was authorized to draw conclusions of fact from the evidence in the former, so may it in the latter exclude the facts themselves as authorizing the jury to draw no conclusion from them.
The defendant has, by asking the court so to direct the jury, shown that the jury might so regard and find the facts as establishing negligence, but for that direction.
These facts were properly before the jury, and were proper for their consideration as tending to prove negligence in going unnecessarily into a position, from the apparent dangers of which he was induced to leap off the train, and the court should have neither found for the jury any conclusion of fact of its own, nor withdrawn the facts from the consideration of the jury. Such we consider to be the effect of refusing these instructions.
The qualifications made to the 2nd, 4th, 8th, 9th and 15th instructions asked by the plaintiff, were correct. The degree of care required, and liability imposed, appear to be considerately and correctly stated; and the facts that will establish a prima facie case of negligence are such as this court sanctioned on the former hearing of the cause in 15 Ill.
In the remarks of the court that instructions “ Y,” “ Z,” and “ Sf,” were given by consent of defendant, we can perceive no injury necessarily arising to plaintiff, as no motive, design or effect of the remark is apparent on the record.
The instructions “ 14, O,” “ 3, P ” “Q,” “R,” “ S,” “T,” and “ V” were properly refused.
Persons under imminency of peril may not be required to exercise all the presence of mind and care “ of a prudent, careful man,” with impending danger. The law makes allowance, and leaves the circumstances to the jury to find if the party acted rashly and under an undue apprehension of the danger.
Instructions of the character of “ 3, P,” have already been condemned by this court as not defining correctly the rule of care and diligence of common carriers of passengers. Chief Justice Savage was not defining the rule, but arguing the principle, when he used the expression in Camden and Amboy Railroad Co. v. Burke, 13 Wend. R. 626; Angell on Carr., Sec. 523. And Mr. Angell, in Sec. 568, gives a more careful and accurate definition of the degree of liability of carriers.
The other instructions, like that of defendant’s, commented on above, assume to decide upon the facts, and draw conclusions for the jury.
For the errors in the instructions noted, we reverse the judgment and remand the cause again for a venire de novo.
Judgment reversed.