delivered the opinion of the court:
The first contention of appellant is, that the trial court erred in refusing to direct a verdict in its favor, on the ground alleged that the evidence did riot tend to prove that the plaintiff used ordinary care for his own safety, and because there was no evidence that he performed the duty required of him by the statute before attempting to pass the crossing. The statute referred to is section 12 of “An act in relation to fencing and operating railroads,” as amended June 19, 1885, (Hurd’s Stat. 1899, p. 1330,) viz.: “All trains running on any railroad in this State, when approaching a crossing with another railroad upon the same level, * * * shall be brought to a full stop before reaching the same, and within eight hundred feet therefrom, and the engineer or other person in charge of the engine attached to the train shall positively ascertain that the way is clear and that the train can safely resume its course before proceeding to pass the * * * crossing.” The point made is, that the plaintiff, who was in charge of the engine, did not “positively ascertain” that the way was clear, and that such violation of the statute was negligence per se. We are of the opinion that the statute does not apply to switch yards like the one in question, consisting of an intricate system of tracks running in various directions, some crossing each other, all used for switching purposes and belonging to the same railroad or company.
It is also urged that Kehoe, the plaintiff’s helper, was negligent in not seeing the approaching train when he ought to have seen it, and in not signaling appellee to stop, and that his negligence was imputable to appellee. Upon this question the trial court gave an instruction at the instance of the defendant, which told the jury, in substance, that if they found Kehoe guilty of negligence they should find a verdict for the defendant. This instruction was more favorable to the defendant than it was entitled to. (Chicago and Eastern Illinois Railroad Co. v. O'Connor, 119 Ill. 586; Chicago and Alton Railroad Co. v. Harrington, 192 id. 9.) Kehoe was not an employee of the defendant, and if it was through his negligence that appellee was injured, that would not absolve the defendant from responsibility if it was also negligent. The case of Chicago and Northwestern Railway Co. v. Snyder, 117 Ill. 376, is not a parallel case. The case at bar was not brought against the common master of Kehoe and the plaintiff, while the case last cited was brought against the common master and another.
It is also claimed that there was no evidence that Godfrey used reasonable and proper care in attempting to pass the crossing, and.that he is contradicted by his own witnesses. There was evidence tending to prove that appellee was in the exercise of ordinary care for his safety when attempting to pass over the crossing, and it is not within the province of this court to weigh the evidence when it is conflicting.
It is further said that there was no evidence that the defendant carelessly and improperly managed its switch engine so that it was negligently made to collide with plaintiff’s engine. It was a controverted fact whether defendant gave any signals or had its headlight burning. It is conceded that it did not send out any man to see whether the crossing was- clear before moving its train down. There was evidence that there was a rule or custom to send out a flagman before reaching the crossing, to ascertain whether it was clear or not. There was evidence tending to prove negligence in the respect mentioned, and the fact has been finally and conclusively settled against the appellant.
It was also claimed by appellant that it had an order in force that all in-bound trains should take the Whit-taker track and that the hog-house track was only to be used by out-bound trains. The plaintiff never had any notice of such rule, and there was evidence tending to prove that the rule was not enforced, but was disregarded habitually with the knowledge and acquiescence of the defendant. It cannot, therefore, be said that it was negligence per se for plaintiff to take the hog-house track in going into the yards.
The motions to direct a verdict for the defendant were properly overruled.
Evidence was admitted by the trial court with reference to the location of certain buildings, tracks and cars, and with reference to the usual manner of conducting the business of appellant and.„others in appellant’s yards. All this was competent evidence in the case. The environment and usual manner of conducting the business involved at the place of the injury is competent as shedding light on the acts and conduct of the parties.
Error is assigned on the giving of the following instructions for appellee:
1. “The jury are instructed that if they believe, from the testimony, the rule or notice of the defendant read in evidence, relating to the use of tracks by crews of the plaintiff’s company in entering the defendant’s yard from the Terminal Railroad Association yard, was habitually violated with the knowledge and acquiescence of the defendant or was not enforced as to the switching crew with which the plaintiff worked, then the jury should disregard such notice or rule in considering the whole case.
2. “If the jury believe, from the evidence, that the defendant is guilty of the acts of negligence charged in the declaration, and that the injury to plaintiff complained of resulted therefrom while he was in the exercise of ordinary care for his own safety, the defendant is liable and plaintiff is entitled to a verdict.
5. “The jury are further instructed, as a matter of law, that the question whether the plaintiff was guilty of negligence which contributed to his injury and without which the accident would not have occurred, is for the jury, and must be determined from all the facts and circumstances shown by the testimony.
7. “It was the duty of the defendant’s switching crew to exercise ordinary care in so doing their work as to avoid injuring the plaintiff while running his engine upon the defendant’s track, and if the.jury believe, from the evidence, the engine which struck and collided with plaintiff’s engine at the crossing was not managed and controlled with ordinary care by the defendant’s crew in charge of the same, and the plaintiff’s injury was the direct result of the negligence of such crew in managing and controlling said colliding engine while he was in the exercise of ordinary care for his own safety, the defendant is liable and plaintiff is entitled to a verdict.”
The first instruction states the rule correctly as laid down in Chicago and Western Indiana Railroad Co. v. Flynn, 154 Ill. 448. It does not assume to say anything about appellant’s duty, as claimed by counsel, and could not in any way have misled the jury.
The second instruction is criticised by counsel also. They say the rule is, that although the plaintiff may have been in the exercise of ordinary care for his own safety at the time of the injury, still he was not entitled to recover unless he was in the exercise of ordinary care to foresee and avoid danger before the accident. They contend the instruction limits the time the plaintiff was required to use due care to the moment when he was injured. This interpretation of the expression, “while he was in the exercise of ordinary care for his own safety,” is too narrow. The same contention was passed on adversely to appellant’s contention in Chicago and Alton Railroad Co. v. Fisher, 141 Ill. 614. The words have reference to the whole transaction. (Lake Shore and Michigan Southern Railway Co. v. Ouska, 151 Ill. 232.) Besides, the third instruction required the jury to find that the plaintiff exercised ordinary care for his own safety before and at the time of the occurrence of the injury.
The same criticism is made of the seventh instruction. It is further claimed that this instruction assumes that at some time the appellee was in the exercise of ordinary-care. This criticism is hypercritical. A similar one was met in Chicago and Alton Railroad Co. v. Fisher, supra, and it was there said that the qualifying words, “if the jury believe, from the evidence,” applied to the entire sentence.
The fifth instruction is said to be misleading, because it tells the jury “that the question whether the plaintiff was guilty of negligence which contributed to his injury and without which the accident would not have occurred, is for the jury.” Counsel say that “if negligence on the part of the plaintiff affects the chain of causation in any degree, the courts will no longer weigh the negligence of the parties and nicely balance their degrees of negligence. The defendant was entitled to have the jury plainly instructed that if the negligence of plaintiff contributed, in any degree, to the injury, he could not recover.” Counsel claim that this instruction lays down the doctrine that “plaintiff may recover notwithstanding his own negligence contributed to the injury, if it did not so far contribute as that without it the injury would not have occurred.” If plaintiff was guilty of any negligence not contributing to the injury, such negligence could not be contributory negligence. As said in Consolidated Coal Co. v. Bokamp, 181 Ill. 9, “it might be that plaintiff failed to do some act or was guilty of some qareless or negligent act which contributed to his injury yet which was not the proximate cause of the injury, and still be entitled to recover.” In 7 Am. & Eng. Ency. of Law (2d ed. 371,) the following definition of contributory negligence is given: “Contributory negligence is a want of ordinary care upon the part of a person injured by the actionable negligence of another, combining and concurring with that negligence and contributing to the injury as a proximate cause thereof, without which the injury would not have occurred.” Mr. Beach, in his work on Contributory Negligence, speaking of the difficulty of framing precise definitions, suggests this definition: “Contributory negligence, in its legal signification, is such an act or omission on the part of a plaintiff, amounting to a want of ordinary care, as, concurring or co-operating with the negligent act of the defendant, is a proximate cause or occasion of the injury complained of.” Without undertaking to define contributory negligence, we see no objection to the instruction mentioned, on the grounds urged by appellant.
Finding no error in the record the judgment must be affirmed.
Judgment affirmed.