dissenting:
I think that the judgment of the Appellate Court ought to be affirmed, and that that court correctly disposed of the questions involved, as will appear from the following extract from its opinion, to-wit:
“The evidence on the question of care on the part of deceased and the negligence of appellant is conflicting. We are1 of opinion, from a careful reading and consideration of the evidence, in the light of the arguments of counsel, that there was sufficient proof to justify the submission of the case to the jury under the second count of the declaration.
“There is evidence tending to show that deceased signaled the gripman to stop the train at a time and under circumstances when he must have seen the signal; that the train was slackened in its speed, one of the witnesses testifying that it was going very slow, and another that it was coming near a stop and was going very slow, and another that the train was just-moving; and that the gripman, just as deceased was in the act of getting upon the step of the car, suddenly and violently started the train forward at a great rate of speed, one of the witnesses testifying that the car gave a lunge ahead just as deceased went to get on,—when he had one foot on the step and had hold of the car with each hand; another witness testifying that upon a quick signal given by the conductor, when the car was going very slow, the car lunged forward; and still another, that as the car came near a standstill deceased took hold of the handle-bar on the front end of the first trailer, the car was then signaled by the conductor to go ahead, when the gripman started the car with such force that the man’s foot slipped off the step right around against the side of the car, and also that when the signal was given the car ‘lunged right forward and it jerked him off. ’
“It is true the evidence on behalf of appellant tends to show that deceased attempted to get upon the moving train while it was going at the rate of seven or eight miles per hour; that he gave no signal to the gripman; that there were signals given by both whistle and bell for the train to move forward, and that the gripman did not see the deceased when he attempted to board the moving train. But these matters were all peculiarly for the consideration of the jury, and we cannot say, after a careful reading and consideration of the evidence, that it shows either that the deceased was guilty of contributory negligence or that it fails to show negligence on the part of appellant’s gripman which would justify the verdict of the jury.
“The fact that deceased attempted to board the train while it was moving slowly, as the witnesses for appellee say, does not, as matter of law, show a want of ordinary care. Whether there was such want of ordinary care was for the jury. (Cicero and Proviso Street Railway Co. v. Meixner, 160 Ill. 320; North Chicago Street Railroad Co. v. Wiswell, 168 id. 613; North Chicago Street Railroad Co. v. Williams, 140 id. 275; Springfield Consolidated Railway Co. v. Hoeffner, 175 id. 634).
“If appellant’s gripman slowed up his train, and then when deceased attempted to board it the gripman started up with a jerk or lunge, as the witnesses testify, and when he knew that deceased was in the act of getting on, it would be negligence for which appellant would be liable. (Meixner case, supra; West Chicago Street Railroad Co. v. Manning, 170 Ill. 417; Hoeffner case, supra).
“The evidence which it is claimed the court erred in admitting is of a custom or habit of appellant of stopping its trains at or near the place of the accident. The contention is, that as the evidence did not show that deceased knew of such custom, it was incompetent and prejudicial error. We think this contention is not tenable, and that the evidence was proper and material to be considered by the jury in determining whether or not, in view of the conflict in the evidence, the particular train of appellant moved slowly or rapidly at the time in question; and besides, there was evidence from which it might have been inferred deceased knew of such custom.
“The only other matter of procedure of which complaint is made was as to the admission of the testimony of a witness who testified as to this custom, and admitted, on cross-examination, that he did not know whether or not the cars stopped always or only when they were ahead of time, there being a motion by appellant, after the cross-examination, to strike out the evidence of the witness. We think there1 was no error in this regard. The evidence tended to prove that there was such custom, if the trains stopped at this place when they were ahead of time.
“The judgment of the circuit court is affirmed.”
In addition to what is said above, it may be observed that the opinion of the majority in this case is in direct conflict with the recently decided case of North Chicago Street Railroad Co. v. Kaspers, 186 Ill. 246.