delivered the opinion of the court:
The main contentions of the appellant company in this case are, first, that the contract between appellee and appellant was that the car, containing appellee’s theatrical scenery and apparatus, should be hauled from Decatur to Bloomington by a passenger train, which was to leave Decatur on Monday morning about nine o’clock, and that appellant did not agree to haul the car in any other train or in any other way; and second, that appellant was not obliged to haul the car until it had passed the inspection of its car inspector, and that, by reason of the broken condition of the draw-bar on one end of the car, it did not pass such inspection.
In connection with the first contention of the appellant, it claims that it was not bound to perform the contract as made, because such contract was illegal and in violation of the statute, and also of its own charter. Section 21 of the “Act in relation to fencing and operating railroads,” approved March 31, 1874, provides as follows: “In no train shall freight, merchandise or lumber cars be run in the rear of passenger cars, and if such cars, or any of them, shall be so run, the officer or agent who so directed, or knowingly suffered such arrangement to be made, shall'each be deemed guilty of a misdemeanor, and punished accordingly.” (3 Starr & Cur. Ann. Stat.—2d ed.—p. 3277). Appellant’s contention is that, inasmuch as, by the terms of this statute, it was forbidden to haul the car in question in the rear of the passenger train to start from Decatur on Monday morning, the contract made by it was a void contract, and could not be enforced. It is said in relation to such a contract, that, the parties being in pari delicto, the law leaves them where it finds them, and that no question of estoppel or ratification can possibly arise.
The trial court held the law upon this subject to be as contended for by the appellant, because it gave to the jury for the appellant the following instruction numbered 5, to-wit:
“Even if you believe from the evidence Hovey [the appellant’s freight agent] agreed with plaintiff’s manager, the defendant should haul the car in controversy at the rear end of the passenger train on Monday morning, such agreement, if any such is shown by the evidence, was one prohibited by the laws of this State, and is wholly invalid and illegal. You are instructed, therefore, such agreement, if any, did not bind the defendant, and as to it, you will find the defendant not guilty.”
In view of this instruction, so given at the request of the appellant, the latter has no reason to complain of the action of the court in that regard. But it was a question in dispute between the parties whether or not the contract was to haul the car by this particular passenger train, which was to leave Decatur on the morning of Monday, February 4, about nine o’clock. Both parties submitted the question to the jury whether the contract was to haul the car by this particular train, or whether the appellant agreed to haul the car from Decatur to Bloomington in time for the theatrical performance to be given at Bloomington on the evening of Monday, February 4, without reference to any special or particular train. If the contract was a general agreement to take the car from Decatur to Bloomington in time for the performance, the appellant could have hauled it by attaching it to a locomotive, or a freight train, and thus a violatiop of the statute by attaching it to a passenger train would have been avoided.
It is true that the draw-bar at one end of the car in question was broken, but there is testimony, tending to show that the draw-bar at the other end of the car was in good condition, and that, by turning the car around and attaching the end Where the draw-bar was not broken, the car could have been hauled from Decatur to Bloomington within the time specified; and there is also evidence, tending to show that the appellant, through its agent or agents, agreed thus to haul it, or allowed appellee to believe that they would so haul it. If the appellant agreed to haul the car by thus attaching the end of it, which was in good condition, to some locomotive or train, it waived its objection that the car was not in good condition for transportation. These questions were all questions of fact, and- were submitted to the jury by proper instructions, and the jury have found them against the appellant. The judgment of the Appellate Court, affirming the judgment of the circuit court, is binding upon us, so far as these questions are concerned.
For instance, the second instruction, given for the appellee by the trial court, was as follows:
“If you believe from the evidence plaintiff made a contract with the Illinois Central Railroad Company to haul his car from Decatur to Bloomington without reference to any particular train it should be connected with, or to the condition of the car, in time to enable him to give his show there, and that he paid for such hauling; and if you further believe from the evidence said railroad company could have hauled said car, coupled by its good end either to a locomotive or to the rear end of a train, other than a passenger train, without danger in excess of the ordinary danger incident to the hauling of other cars, and if you further believe from the evidence plaintiff informed said railroad company’s agents at Decatur of his engagement or contract to give a show in Bloomington on the evening of February 4, 1895, and that, after said agents became so informed, the said railroad company failed or refused to haul said car to Bloomington in time to enable plaintiff to give his show in Blooming-ton, then the plaintiff is entitled to recover all additional expense, if any has been shown by the evidence necessarily incurred by him, and all profits which he would have received for giving the said performance in Bloomington, after deducting the expense of advertising his show in Bloomington, if said car had in fact been hauled to Bloomington in time to enable him to give said show in Bloomington, if you believe from the evidence he would have received any such profits.”
This instruction submitted to the jury the question, whether or not the contract was that appellant should haul the car to Bloomington without reference to any particular train it should be connected with, and without reference to the condition of the car. It also left to the jury to find whether the car could have been hauled, even if the draw-bar at one end of it was broken, by coupling its g'ood end to a locomotive, or to the rear end of a train other than a passenger train.
The court gave a number of instructions for appellant, and among others, the following numbered 2, to-wit:
“In the absence of a contract or agreement to the contrary, the defendant was not required or bound in law to haul the car in controversy in any other train or in any other way than contemplated or provided in such contract or agreement. And if, therefore, you believe from the evidence the contract or agreement in this case was, the car in controversy should be hauled in or by the Monday morning passenger train, then the defendant was not required to haul it in any other train, or in a special train, or by a special engine. And if you believe from the evidence that plaintiff’s car, when said passenger train reached Decatur, was in such condition it could not be safely hauled from Decatur to Bloomington except at the rear of the train, and as the rear car of the train, your verdict should be for the defendant.” -
By this instruction the appellant submitted the question to the jury, whether or not the contract was such a contract as the appellant claimed it to be, and it also embodied the theories of the appellant as to the contract and as to the condition of the car. We are unable to see, therefore, that the appellant was in any way injured, or its rights prejudiced, by the action of the court in the giving of instructions.
Again, the court gave to the jury, in behalf of the appellant, an instruction numbered 6, which was as follows:
“The court instructs you that, if the plaintiff contracted for the transportation of the car in controversy from Decatur to Bloomington by the passenger train that left on Monday morning, and that no contract was made to haul it by any other train, and if you further believe from the evidence that the condition of said car on Monday morning was such that it could not safely be carried in any other place in the train than at the rear, and as the rear car, your verdict in such case must be for the defendant.”
Several of the instructions, given by the trial court for the appellee, are complained of by the appellant upon the ground that they do not recite all the facts relied upon by the appellant in its defense to the action, but only recite such facts as are necessary to warrant the jury in finding for the appellee. The instructions are not objectionable for the reason thus insisted upon. These instructions are based upon the hypothesis or theory contended for by the appellee, and they summarize the elements necessary to a recovery upon that theory without omitting any essential matter. In Chicago and Alton Railroad Co. v. Harrington, 192 Ill. 9, we said (p. 24): “The rule, that an instruction is erroneous which sums up all or a part of the facts which the evidence tends to prove on one side, and omits the facts on the other side, does not apply to'an instruction, which merely fails to embody evidence, tending to establish a distinct antagonistic theory. * * • * All the law requires is that an instruction, based upon some particular hypothesis warranted by the evidence, which undertakes to summarize the elements in the cause essential to a recovery upon that theory, must not omit any essential matter. * * * It is not necessary to incorporate all the evidence in an instruction, but only matters which constitute a material issue in the case.” In the case at bar, the facts, which are alleged to have been omitted in the instructions for the appellee, are merely circumstances which are a part of the testimony tending to disprove the appellee’s cause of action, and are not controlling circumstances. The appellant asked, and the court gave in its behalf an instruction similar to those complained of as having been given for the appellee, which embodied facts establishing the particular hypothesis or theory for which appellant contended. Several instructions were thus given for appellant, which presented appellant’s grounds of defense, but did not include all the facts tending to establish appellee’s right of recovery. “A party has no right to complain of an error in an instruction when a like error appears in an instruction given at his own request.” (Chicago and Alton Railroad Co. v. Harrington, supra, and cases there referred to).
Some of the instructions, given for the appellee, are also criticised by appellant’s counsel upon the alleged ground that they lay down an improper rule as to the damages to be recovered, but we do not regard them as erroneous in this respect. The evidence tends to show that appellee and his troupe could not go from Decatur to Bloomington, and were detained in Decatur, and that they had to be transported by another route to Springfield. The evidence tends to show, also, that the advance sale of tickets to the show, which had been made in Bloomington, amounted to $100.00; that this amount had to be refunded to the ticket purchasers; and that the advance and box-office sales together would have amounted to about $500.00, estimated by the amount of sales at previous exhibitions of the performance. The evidence also tended to show that there was a contract between appellee and the owner of the opera house in Blooming-ton, where the show was to take place, by the terms of which appellee was to receive seventy per cent of the sales. There was evidence also tending to show that the appellant or its agents were informed that the object of going from Decatur to Bloomington was to give this show on the night of February 4. The instructions left it to the jury to determine whether or not the proper notice and information were communicated by appellee or his agents to appellant or its agents as to the purpose of hauling the car to Bloomington, and as to appellee’s contract in relation to the same. In estimating the losses, sustained by reason of the failure to perform a contract of this character, it is proper for the jury to take into consideration the nature of the plaintiff’s business and his profits for a reasonable period next preceding the time when the contract was violated. (Chapman v. Kirby, 49 Ill. 211).
We find no error in the record, which would justify us in reversing the judgment of the Appellate Court. Accordingly that judgment is. affirmed.
Judgment affirmed.