delivered the opinion of the court:
This was an action on the case to recover damages for a personal injury. The declaration contained one count, which averred, in substance, that on the 17th day of August, 1897, the defendant was possessed of and operating a street car, going west, in Fullerton avenue, in the city of Chicago; that while the plaintiff was riding a bicycle in the same direction on said avenue, at a point near Oakley avenue, in the exercise of due care for her own safety, the conductor who was then and there in charge of said car and who knew of the approach of the-plaintiff, or by the exercise of reasonable care might have known of her approach, negligently and without warning suddenly jumped off the car immediately in front of the plaintiff, so that the bicycle upon which she was riding struck him, whereby she was thrown to the ground and injured. The general issue was filed, and upon the trial the jury returned a verdict in favor of the plaintiff for $1000, which, on appeal, was affirmed by the Appellate Court for the First District, and a further appeal has been prosecuted to this court.
A motion has been made to dismiss the appeal on the ground of want of jurisdiction in this: that no more than $1000 is involved and no certificate of importance has been granted by the Appellate Court. This is an action in which the damages sought to be recovered are speculative and not susceptible of direct proof, and the judgment appealed from is for $1000. The question raised here has been before this court repeatedly, and the rule announced by the decided cases is, that in actions ex contractu or ex delicto, if the damages sought to be recovered are speculative in character and not susceptible of direct proof, and the damages are $1000 or more, as shown by the judgment, an appeal lies from the judgment of the Appellate Court to this court without a certificate of importance. (Baber v. Pittsburg, Cincinnati and St. Louis Railroad Co. 93 Ill. 342; Hankins v. Chicago and Northwestern Railway Co. 100 id. 466; Umlauf v. Umlauf, 103 id. 651; Bank of Commerce v. Miller, 202 id. 410.) This appeal falls within the rule above announced, and this court has jurisdiction thereof without a certificate of importance. The motion to dismiss will be denied.
There was but little conflict in the evidence, from which it appeared the plaintiff, a young woman about twenty years of age, on August 17, 1897, started with her mother and aunt to go from their home on the north side, in the city of Chicago, to Maywood, a suburb of said city. Her mother and aunt were upon the street car and she rode a bicycle. When upon Fullerton avenue, which runs east and west, the plaintiff at times was in front and again in the rear of the car upon which her mother and aunt were passengers. When the car stopped, at Oakley avenne, which runs north and south, the conductor was upon the front platform. At that point he left the car to assist a lady passenger in alighting, and just as he stepped upon the ground the plaintiff, who was riding near the car and a few feet to the rear of the platform, upon the same side upon which he alighted, ran against him with her bicycle. He was knocked down and she was thrown from the bicycle and her arm broken. The car stopped at a usual stopping place to receive and discharge passengers; the conductor left the car in his usual manner; the plaintiff was accustomed to riding a bicycle upon the streets of the city; the accident occurred about eleven o’clock in the forenoon; the street was free from teams; her view was unobstructed; the pavement was in good repair; the plaintiff was riding at the rate of five or six miles per hour, and the car was standing still at the time of the collision.
At the close of all the evidence the defendant moved the court to take the case from the jury, which the court declined to do. We are of the opinion the motion should have been allowed and the jury instructed to find for the defendant. The plaintiff knew the car was accustomed to stop at the further side of cross-streets for the purpose of receiving and discharging passengers, and that the conductor usually left the car at such stops. While the plaintiff had the right to ride a bicycle upon the streets, the defendant had the right to stop its car at that place and the conductor had a right to be upon the street, and it was the duty 'of plaintiff, she knowing the car was apt to stop, to watch for and guard against striking passengers who were entering or leaving the car, or the servants of the defendant who had alighted for the purpose of assisting persons to leave or enter the car. The evidence shows the conductor was standing from two to five feet from the car at the time he was struck. He had the right to be in the street near his car at that place while it was standing still. The plaintiff was aware of that fact. The street was of sufficient width to have permitted the plaintiff to pass in safety, and if she desired to go ahead of the car while it was standing still, it was her duty to keep far enough away from the car to avoid striking pergons getting off or on the car in the usual way, or the servants of defendant while performing their duties of assisting passengers to enter or leave the car. This she failed to do, but kept on her course at so high a rate of speed and so close to the car that she was unable to stop her wheel in time to avoid a collision when the conductor alighted, the result of which was, her bicycle struck him with so much force as to knock him down and to throw her off upon the ground and inflict upon her the injuries complained of. It is plain from the undisputed evidence that her failure to turn out a sufficient distance from the car to permit her to pass in safety was the proximate cause of the injury. It was not the duty of the conductor to warn the plaintiff that the car would stop at the further side of Oakley avenue, at its intersection with Fullerton avenue, to receive and discharge passengers and that he would alight from the car at that point. She was aware of such facts. It is clear from the evidence that the conductor was looking west at the time he alighted and did not see the plaintiff until he was struck by the bicycle and thrown.down.
Complaint is also made that the court erred in giving to the jury, upon behalf of the plaintiff, the following instruction:
“The court instructs the jury that by ordinary care the law means such a degree of care, under the circumstances and in the situation in which the plaintiff was placed, so far as they may be shown by the evidence, as an ordinary, prudent and cautious person would exercise, under like circumstances and in the same situation, for his own safety, to avoid apparent danger.”
The criticism made upon this instruction is, that it assumes that an ordinarily prudent and cautious person might find himself in the situation that plaintiff was in at the time of the accident, and assumes that she was not guilty of contributory negligence in-being in the position in which she found herself at the time of the injury. In personal injury cases it has been repeatedly held by this court that it is improper to give an instruction which limits the question of due care to the conduct of the plaintiff at the time of the injury, regardless of his conduct in placing" himself in a place of danger. The claim of defendant was that plaintiff was guilty of contributory negligence in riding her bicycle at the rate of speed at which she was going, so close to the car that when it stopped to let off a passenger an accident would be likely to occur in case a passenger or the conductor should step from the car. 'We think this instruction subject to the criticism made, and that the jury might well have inferred therefrom that if the plaintiff was in the exercise of due care at the instant when the accident occurred, then she might recover, although the evidence showed she was guilty of negligence in having placed herself in the position in which she found herself at the time of the collision. In Chicago, Milwaukee and St. Paul Railway Co. v. Halsey, 133 Ill. 248, on page 254, in discussing the question now under consideration, the court said: “Nor should the inquiry in regard to contributory negligence by the deceased have been directed only to the evidence of what the deceased did at the time of receiving the injury. The claim of appellant is, not that he then failed to do what a man of ordinary caution would have done to avoid injury, but that he failed to do what a man of ordinary caution, under like circumstances, would have done to avoid placing himself in a position from which he could not escape without being injured. One who, failing to observe due care, blindly walks into a danger that the observance of due care would have enabled him to avoid is no less guilty of contributory negligence than he who by the observance of due care could extricate himself from danger fails to make any effort for his personal safety, and because thereof is injured.”
The authorities agree that a bicycle is a vehicle, subject to the rules of law governing other vehicles; (State v. Collins, 16 R. I. 371; Holland v. Bartch, 120 Ind. 46; Swift v. Topeka, 43 Kan. 671; Thompson v. Dodge, 58 Minn. 555; Elliott on Eoads and Streets,-—-2d ed.—sec. 852;) and it has been held that the rider of a bicycle is required to use the same degree of care as the driver of a team of horses hitched to a wagon, (Peltier v. Bradley, 67 Conn. 42,) and that the driver of a vehicle who attempts to pass another vehicle on a public road does so at his peril; (Avegno v. Hart, 25 La. Ann. 235;) and it was ruled by the New York Court of Appeals in Adolph v. Central Park, North and East River Railroad Co. 76 N. Y. App. 530, that “one person may choose to go at a slow pace along the way, and has a right so to go; another may choose to go at a faster pace, and has a right so to go; yet each must exercise his right so as not unnecessarily to abridge the use by the other of his right. The one choosing to go fast may turn out and go past the one choosing to go slow, but must keep clear of him in doing it;” and by the Supreme Court of Tennessee in Young v. Cowden, 98 Tenn. 577, that it is the duty of the driver of a vehicle following another to give warning to the vehicle in front before attempting to pass, where it is dangerous to pass, and then not to attempt to pass unless he can do so safely.
We think the contributory negligence of the plaintiff in this case was such as to bar a recovery. In Beidler v. Branshaw, 200 Ill. 425, on page 430 we said: “Although it is true that the question of contributory negligence is ordinarily a questio'n for the jury, yet when there is no conflict in the evidence and the court can clearly see that the injury was the result of the negligence of the party injured, it should not hesitate to instruct the jury to return a verdict for the defendant. In Lovenguth v. City of Bloomington, 71 Ill. 238, it is said (p. 241): ‘A party has no right to knowingly expose himself to danger and then recover damages for an injury which he might have avoided by the use of reasonable precaution. ’ In Werk v. Illinois Steel Co. 154 Ill. 427, on page 432 the court say: ‘While questions of negligence or of contributory negligence are ordinarily questions of fact, to be passed upon by a jury, yet when the undisputed evidence is so conclusive that the court would be compelled to set aside a verdict in opposition to it, the court may withdraw the case from the consideration of the jury and direct a verdict.’”
The judgments of the superior and Appellate Courts will be reversed. Judgment reversed.