delivered the following dissenting opinion:
As the Appellate Court says in its opinion: “The theory of defense was that the brick wagon, upon which, appellee was riding, suddenly backed up so as to bring the appellee’s leg in contact with the pole of appellant’s wagon, and without fault of appellant’s driver. The theory of appellee was that the brick wagon was stopped and was standing still, when the driver of appellant’s wagon negligently proceeded until the pole of the wagon struck appellee.” The evidence was conflicting. A part of the testimony sustained the theory of the appellant, and a part of it sustained the theory of the appellee. It was a question of fact, and as there is evidence tending to support the cause of action, such question of fact is settled by the judgments of the courts below.
First—At the conclusion of the appellee’s case, and again at the conclusion of all the testimony, counsel for appellant, upon the trial below, asked the court to give to the jury a peremptory instruction to find the appellant not guilty. This instruction was refused, and its refusal is assigned as error. The refusal of the peremptory instruction is claimed to have been error upon the alleged ground that the fact, that the boy was riding upon that part of the brick wagon which projected some fourteen inches beyond the tail-board, constituted negligence per se. The question, whether the boy was in the exercise of ordinary care for his own safety when he was injured, was a question of fact to be determined by the jury. The fact, that he was riding upon the tail-board of the wagon, instead of sitting upon the brick with which the wagon was loaded, or upon the front seat with the driver, was a circumstance, which the jury had a right to take into consideration in determining whether or not appellee was in the exercise of ordinary care for his own safety, but, under the decisions of this court, that circumstance did not conclusively establish negligence on appellee’s part, as matter of law. In North Chicago Street Railroad Co. v. Baur, 179 Ill. 126, it appeared that a passenger on a street car left his seat, and went upon the platform of the car, from which he was thrown by the sudden starting of the car, and the question was raised whether or not he was guilty of negligence in so leaving his seat and going upon the platform, but that was held to be a question of fact for the jury under all the facts and circumstances.
In Gibbons v. Vanderhoogt, 75 Ill. App. 106, it was held that it was a question for the jury to determine what care should be exercised by a boy fourteen years of age, who was injured while sitting on the rear end of a wag'on and directly in front of another wagon, and that the fact of Ms sitting in the place named could not be held to constitute negligence per se. In answer to a special interrogatory submitted to the- jury by appellant upon the trial below, the jury made a special finding to the effect that the plaintiff was at the time of the injury in question in the exercise of ordinary care and caution.
Second—It is assigned as error that the court refused to give the first of the instructions tendered by the appellant. This instruction contained the following words: “The jury are instructed that the mere fact, that the wagon of the defendant was proceeding at a distance of not more than five or six feet from the brick wagon, is not of itself evidence of negligence on the part of the defendant company.” The refusal of this instruction was not error, because it was a question of fact for the jury whether or not the defendant below was guilty of negligence, and it was improper to single out any particular circumstance, and call such circumstance to the attention of the jury, as establishing negligence or as failing to establish negligence. It was for the jury to determine under all the circumstances, whether the conduct of appellant’s driver was negligent or not.
In answer to special interrogatories, submitted to the jury by the appellant, the jury specially found that the driver of appellant’s wagon was negligent in the management of its team and wagon; that the injury to appellee could have been avoided by the exercise of ordinary care and prudence on the part of the driver of appellant’s wagon; that the team, which drew appellant’s wagon, had not been brought to a stop before the collision which caused the injury to appellee; and that the collision was not caused by the backing of the brick wagon moving toward the south.
Third—It is further assigned as error, that the court refused to give an instruction, asked by the appellant, which conditioned the right of the plaintiff to recover upon the belief by the jury from the evidence that the appellee, plaintiff below, had sufficient age and sufficient intelligence and experience to properly understand and comprehend the risk he took in occupying the seat, which he did occupy upon the rear end of the wagon. There was no error in refusing this instruction, for the reason that the principle, embodied in it as above stated, was sufficiently set forth in the second instruction, which was given for the appellant at its request.
Fourth—It is assigned as error that the coürt gave an instruction for the plaintiff below, which conditioned the right of the plaintiff to recover upon the belief and finding of the jury from the evidence, “that plaintiff was exercising ordinary care for a boy of his age,” etc. The objection to this instruction is, that it should have conditioned the right of recovery upon the belief and finding of the jury from the evidence that plaintiff was exercising ordinary care for a boy, not merely of his age, but also of sufficient capacity and experience to comprehend the risk, which he ran in riding upon the tail-board of the wagon. The claimed defect in the instruction was obviated and remedied by the second instruction above referred to, which was given for the appellant at its request. The second instruction so given is as follows:
“If the jury believe from the evidence in this case that the plaintiff, at the time of the injury complained of, had sufficient age and sufficient intelligence and experience to properly comprehend and understand the risks he took in jumping on to the rear end of a passing wagon and thus remaining and riding, then you are instructed that the law charges him with the same responsibility for his conduct as if he were of full age, and that want of ordinary care on the part of the plaintiff, if shown by the evidence, would be a complete defense to his suit, the same as if he were of full age.”
Fifth—It is further assigned as error that the court below gave an instruction, at the request of appellee, which mentioned, among the elements of damage for which recovery might be had, “any loss of time and inability to work and earn a livelihood for himself, after he attains the age of twenty-one (21) years, if any, which the jury may believe from the evidence he will sustain on account of such injuries.”'
A correct disposition is made of this assignment of error by the Appellate Court in their opinion where they say (89 Ill. App. 368):
“It is argued that there was no evidence in the case, upon which the jury could reasonably base a belief that there would be any such loss of time or inability after the appellee attained his majority. It is true that no medical expert testified that the injury to appellee was a permanent injury, nor' that it would be likely to continue to affect appellee for any specified length of time. Nevertheless, the jury might, from the evidence in the case, have properly concluded that the injury was a permanent one, or that it would continue to cause loss of time and inability to work after appellee had attained his majority. Appellee testified that the leg was cut open to the bone; that seventeen stitches were taken in sewing up the wound; that he was upon crutches for six weeks after the injury, and was not able to go to work for more than three months. He also testified that, at the time of the trial, the leg still troubled him when he walked ‘far;’ that he then was obliged to sit down and rest; and that it did not seem to be getting better in that respect. Another witness testified that ‘the leg was split open about four or six inches, gashed to the bone,’ etc. The injured limb was exhibited to the jury. We cannot say that the jury might not, from this evidence, have reasonably concluded that the injury was permanent, and would occasion some degree of incapacity for labor after appellee reached the age of twenty-one, if he lived to that time.”
I do not think that there is any error in this record which would justify me in voting to reverse the judgment of the Appellate Court.