dissenting:
I do not concur in the decision rendered by this court in this case. It is held, as it was held when this cause was before us at a former term, (154 Ill. 508,) that it was a question for the jury to determine whether the deceased was himself guilty of negligence or not, and the judgment below is not reversed for lack of evidence showing due care on his part for his own safety. So far I am satisfied with the decision, but I dissent from the conclusion reached that there was not sufficient evidence to go to the jury tending to prove that the deceased was a passenger on appellant’s train when he was killed. It is established that the collision of the two trains which caused O’Keefe’s death was caused by the negligence of appellant. This question is not controverted, but this, the second, judgment for appellee is reversed on the sole ground that, considered as a question of law, npt of fact, O’Keefe was not a passenger at the time of the accident. It seems clear to me that if he was not a passenger he was a trespasser. If not, what was his relation to the company? Now, if he was a trespasser he was guilty of negligence in getting upon the train under the circumstances shown by the evidence and riding on the platform as he did. But it has been twice held in this case that that was a question of fact, upon which this court cannot set aside the finding of the jury. So, also, in my opinion, is the judgment below conclusive upon the question whether he was a passenger or not. That is equally a question of fact, under the evidence. When the jury found that O’Keefe was not a trespasser and was in the exercise of due care for his own safety, and when this court confirms that finding, it logically follows, as it appears to me, that he was rightfully on the train as a passenger, for there was no pretense that he was there in any other capacity.
The evidence shows that O’Keefe had a contract with appellant to deliver to it a large number of railroad ties, and in connection with this contract had received from the company a pass over its road to enable him to travel to and from different points in carrying out the terms of the contract. He had occasion frequently to pass over appellant’s road, using this pass, and sometimes, with knowledge of the trainmen, riding in the baggage car. For purposes connected with his contract relating to the delivery of ties, it became important on the morning in question that he should take the train upon which he afterward met with the accident, at Anna, for another station on the road. Failing to get to the depot in time to take the train, he was compelled, to avoid being left, to climb onto the forward platform of the baggage car while the train was passing him and was moving at the rate of three or four miles an hour, the train being a fast one and the passenger coaches vestibuled. The engineer and conductor saw him get upon the train, but the conductor testified that he did not know at the time that it was O’Keefe, but he did not do anything to indicate that he objected to the carrying of O’Keefe in the manner now complained of. About fifteen minutes after the train had left Anna the collision occurred in which he was killed. The deceased was found sitting upon the steps, crushed between the forward end of the baggage car and the tender. Whether, after getting upon the train, he could have passed through the door at that end of the baggage car and by that means have proceeded to the passenger coaches was a controverted question under the evidence. It is apparent that O’Keefe entered upon the train for the purpose of taking passage and of becoming a passenger. He was not injured in the act of boarding the train, so that it was immaterial whether he got upon the train at the station or afterward when it was in motion, unless it could be considered as affecting the question whether by getting upon the train where he did he became a passenger or not,—and that would be a question of fact, settled in the Appellate Court. The jury were authorized, from the evidence, to find that he did all be could, under the circumstances, to become such passenger; that he had the right of passage on the train; that he was upon the train with the implied consent of appellant, and that while on such train, and before he could enter a passenger coach provided for the carriage of passengers, he was killed through the negligence of appellant. If they so found, then I think it follows that they must have found that he was a passenger. The jury had the right to find, from all the circumstances, including the fact that after the conductor saw him get on the front end of the baggage car he went from the other end of that car through the train taking the fares of passengers without saying anything to O’Keefe and without interfering with him in any way, that he did not object to his riding in that way,—that is, to find implied consent on the part of the company.
In Thompson on Carriers, 42, 43, it is said: “The whole matter seems to depend largely upon the intention of the person at the time he enters the boat or cars,” etc. (See, also, North Chicago Street Railroad Co. v. Williams, 140 Ill. 275, and Chicago, Burlington and Quincy Railroad Co. v. Mehlsack, 131 id. 61.) It is said by Elliott in his late work on Railroads, (vol. 4, sec. 1578): “We think it is safe to say that the general rule is that every one on the passenger trains of a railroad company, and there for the purpose of carriage, with the consent, express or implied, of the company, is presumptively a passenger.”
It is, I think, clear from the authorities that it was a question of fact whether or not the deceased was a passenger at the time he was killed, and that this question does not come within the rule laid down by this court in Simmons v. Chicago and Tomah Railroad Co. 110 Ill. 340, and other cases, that “when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is so insufficient to support a verdict for the plaintiff that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant.”
By the verdicts of two juries, followed by two judgments of the trial court and two judgments of affirmance by the Appellate Court, it has been determined as a question of fact, from the evidence, that the relation of carrier and passenger existed between the appellant and the plaintiff’s intestate. The first judgment was reversed by this court without any intimation that upon the record (substantially the same as the one now before us), the plaintiff had no case, and the cause was sent back for another trial. For what purpose? Simply for the plaintiff to be told, after such trial and another weary journey to this court, that she never had any case to be submitted to a jury.