delivered the opinion of the court:
The appellant questions the sufficiency of the declaration by a motion in arrest of judgment. The first count in the declaration is, in substance, the same as that approved by this court in Chicago City Railway Co. v. Jennings, 157 Ill. 274, the only material difference being, that in that case it is charged that the negligence resulted in a collision, while here the averment is that the negligence resulted in frightening the horse, as a consequence of which the carriage was overturned and the plaintiff thrown out and injured. We are unable to perceive any distinction. The question is whether negligence is properly charged. Whether the statement of the negligence be then followed by appropriate language showing that it resulted in a collision or in frightening the horse, and consequent injury to the driver, can make no difference in the legal sufficiency of the pleading. The first special finding shows that the defendant was found guilty of the negligence charged by the first count, and that stating a good cause of action, the motion in arrest was properly denied. It is unnecessary to determine whether the objections urged to other counts of the declaration are well taken. Baltimore and Ohio Southwestern Railway Co. v. Alsop, 176 Ill. 471.
At the close of the evidence of the plaintiff, and again at the close of all the evidence, defendant moved that the jury be instructed to return a verdict in its favor. This motion was overruled in both instances, and it is now urged that there was no evidence which, with the reasonable inferences to be drawn therefrom, warranted a verdict in favor of the plaintiff. In presenting this question counsel state that they are barred by the verdict of the jury and the finding of the Appellate Court from raising in this court the question whether appellant was guilty of negligence. This must be on the basis that there was some evidence tending to show negligence on the part of the railroad company; but it is urged that there is absolutely no proof tending to show appellee was in the exercise of ordinary care for his own safety.
“Although it is true that the question of contributory negligence is ordinarily a question 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.” Beidler v. Branshaw, 200 Ill. 425.
As the plaintiff approached the railway crossing from the south, according to his testimony, he observed a freight train passing east. After that, while he was three or four hundred ieet from the railroad track, and again as he started down the incline of the highway which leads to the track, be observed this freight train still going east, and looked to see whether any train was approaching from the west, and saw none. Looking westerly from the highway at the south end of the incline, the train, if it were approaching from the west, after passing into the cut about four hundred feet west of the crossing, would be only partially visible,—that is, the top of the smoke-stack of the engine and the tops of the higher cars, only, would project above the bank, except at the deepest part of the cut, where the engine and highest cars would be entirely hidden. The motor-car in that cut would be entirely invisible from this place of observation, and it appears that a train in the cut west of the bridge could not be seen from this point. Plaintiff was driving at the rate of five or six miles an hour. His horse was trotting. He did not slacken speed as he approached the track, and it is urged that this was contributory negligence. As the train going east had just passed, the jury might reasonably find that the exercise of ordinary care did not require plaintiff to guard against danger from that direction. He looked west as he started down the slope leading to the track and satisfied himself that there was no train approaching within a distance of several hundred feet from that direction. Danger of injury by ordinary locomotives or cars would then be lessened by hastening across the track. Such a course, it is true, disregarded the possibility of a collision with a car of the character of that which was then approaching" from the west, but the danger from such a car is much less than that from an ordinary train, and its passage, ordinarily at least, is much less frequent. The course which plaintiff pursued was promotive of safety, so far as danger from the ordinary train or engine was concerned. The quicker he crossed the track the more speedily he would be entirely out of danger from any such train or engine approaching from a point beyond the range of his vision west of the bridge, but this course was not promotive of safety so far as danger from cars of the character of this motor-car was concerned. Under such circumstances we think the evidence tended to show the exercise of due care, and the question was one for the jury.
Appellant requested the court to submit to the jury seven questions of fact, with directions to return special findings in response thereto. The third, fifth and sixth were submitted as requested.
The first inquired whether the servants of the defendant were negligent in the manner in which they approached the crossing in question with the motor-car, and “if so, in what respect.” The court struck out the quoted language, which was proper, and the jury answered the question, so modified, in the affirmative. The material question under the first count of the declaration was whether the servants of the defendant approached the crossing with the motor-car in a negligent manner. If they did, and that negligence occasioned the injury while the plaintiff was in the exercise of due care for his safety, then the finding of the jury in response to the portion of the question stricken out would merely have been their statement of facts evidentiary of the ultimate fact— negligence.
The second and seventh questions, we think, related to immaterial facts,-—that is, the general verdict would not have been in anywise affected no matter how those interrogatories had been answered had they been submitted to the jury. A special interrogatory of this character is not proper unless some answer responsive thereto would be inconsistent with some general verdict that might be returned, so that the court would be required to disregard such general verdict by virtue of section 58c of chapter 110 of Hurd’s Eevised Statutes of 1901, which provides: “When the special finding of fact is inconsistent with the general verdict, the former shall control the latter and the court may render judgment accordingly.” These two special interrogatories were properly refused. Chicago and Northwestern Railway Co. v. Dunleavy, 129 Ill. 182; Chicago Exchange Building Co. v. Nelson, 197 id. 334.
The fourth was as follows: “Was the defendant negligent in not removing the bank of rock and earth on its right of way west of the highway in question?” One of the counts of the declaration charg-ed the defendant with negligence in not removing this bank, and this interrogatory should have been submitted had the court not instructed the jury, on the part of the defendant, that no duty rested on the railroad company to remove this bank. When the jury had been so instructed there was no necessity for submitting an interrogatory which would merely have been an invitation to the jury to fmd'against the instruction of the court.
In instructions numbered 8 and 9, asked by the defendant, the court struck out phrases which advised the jury that the defendant had the right to run the car “in the ordinary and usual method for operating and running such cars and machines.” This so-called motor-car is one of a somewhat unusual kind. We do not think it in such common use that the court could, without any evidence on the subject, presume that any particular method was the ordinary and usual method of operating and running such cars, and in the absence of proof showing the ordinary and usual method the court should not have instructed the jury that the defendant had the right to follow such method.
We have carefully considered the instructions refused which were offered by appellant and to which our attention has been called by the brief and argument, and are of the opinion that in the refusal thereof no error was committed. The jury were fully and fairly instructed.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.