delivered the opinion of the court:
The evidence in this case not only tends to show, but clearly establishes, that appellee was a passenger of appellant, and that he was waiting at the oil shed, by direction of the conductor of the car upon which he had been riding, for the purpose of taking another car upon which passengers were carried, with the authority or sanction of the appellant, from East St. Louis to Belleville, and that the oil shed in question, with like sanction and authority, was used as a passenger station, and that appellant was guilty of the negligence charged in the eighth count.
The only question arising upon the motion for a directed verdict which is entitled to serious consideration is that of contributory negligence. The shed in, question was on the west side of the track upon which the car that injured appellee was traveling. The shed was open on the east side toward the track, and there was an open space at each end, extending west a little way from the east side of the shed. There was a floor in this shed a foot above the ground, and that floor is commonly referred to as the platform, although it did not extend beyond the roof of the structure. From the edge of the floor to the track was a distance of four feet and nine inches. That space was not occupied by any platform and there was no station platform there within the ordinary meaning of that term,—that is, there was no platform between the structure itself and the tracks upon which passengers could easily and conveniently pass to the steps of cars stopping at that station without stepping upon the ground. Appellee was sitting on the north-east comer of the floor of the station. The car which injured him, when on the rails, projected to the outer side of the rail about one foot. While he was sitting in this position three cars of like character passed him without injuring him or touching him. As he sat there he was entirely beyond the reach of any part of such car, and was not where he was apt to come in contact with persons stepping off the car or with articles carried from the car by passengers. The car which injured him, according to the statement of appellant in its brief and argument in this court, “was being moved very slowly and carefully and at a rate of about two miles an hour.”
It may be conceded that the individual who sits down on the edge of the ordiñary railroad station platform on the side thereof next the rail, with his legs projecting over the edge, where cars are frequently passing, and who is injured by a passing car, is not in the exercise of due care for his personal safety. It is also equally certain that if the same individual sits on the edge of a platform belonging to a railroad company at a distance of twenty-five feet from the tracks, he is not, by reason of taking that position, guilty of any negligence that would contribute to an injury received from a passing car. And it is equally clear that if the individual is so located at some one of certain points,between these two extremes more or less remote from the tracks, the question whether or not he is guilty of contributory negligence where he sustains injury from a passing car becomes a question of fact to be determined by the jury. This man, in his position on the floor of the station, was entirely safe so long as the cars of the appellant were properly managed and remained upon the track and so long as appellant itself was guilty of no negligence. He could not, with reason, contemplate or expect any combination of circumstances that would bring the car of appellant which injured him in contact with his person at the place where he sat. We think, under these circumstances, it cannot be said, as a matter of law, that he was guilty of contributory negligence, and for this reason the peremptory instruction was properly refused.
It was contended by appellant upon the trial that its conductors were without authority to permit passengers to ride upon the employees’ car, which appellee was awaiting, and that for this reason he could not be regarded as a passenger at the time he received his injury. The court permitted the appellee to show that many conductors, at various times in the past, had directed passengers to leave the car upon which they were then riding and take this employees’ car for Belle-ville, and that such passengers followed such directions and were carried on that car to Belleville without objection, upon the payment of the ordinary fare. It is urged that this testimony was improperly admitted. This' proof covered a lengthy period of time, and we think it was proper for the purpose of showing that the company had notice, or should have had notice, of the custom, and if it permitted the practice to continue after a time when it had, or should have had, notice thereof, it could not successfully contend that passengers were improperly permitted to ride upon the employees’ car in question.
Complaint is also made of the action of the court in permitting appellee to prove that the car which injured him had during the same night, at different places on the lines of appellant, left the track. This evidence was offered in support of the eighth count of the declaration, that being one of the counts upon which the issues were found for appellee, and is said to have been improper for the reason that no evidence was offered showing the condition of the track at the various places where the car left the track nor showing the manner in which the car was operated on the earlier occasions. We think this contention ignores certain testimony that appears in the record. Hart, the motorman on the car in question, testified: “Down town we got off on Summit avenue. The condition of the track and street on Summit avenue where we got off was good. I operated the car at about five miles an hour. The track there was straight and the street paved. During that run and during that night the car left the track five or six times,” and that on each occasion when the car left the track it “was running slow.” The testimony was proper for the purpose of showing that the company had knowledge of the alleged defective condition of the car.
It is also contended that certain evidence offered in support of counts of the declaration other than the eighth and ninth was improperly admitted. As the appellant was not found guilty upon such other counts, and as the evidence was not of a character to prejudice the jury against the appellant in the trial of the issues presented by the plea to the eighth and ninth counts, its admission, even if 'it was not competent, was harmless.
Two instructions were given on behalf of the appellee. In the first the jury were advised “that if you believe, from the evidence in this case,” etc., and it is said that it was erroneous in omitting any reference to the preponderance of the evidence. If this point be well taken the error was cured by instructions given on behalf of appellant, from which the jury would understand that no recovery could be had unless the plaintiff’s cause was established by a preponderance of the proof. This instruction purported to set out facts which, if established, would authorize a -verdict in favor of appellee, and is said to be erroneous because it does not require the jury, before returning a verdict for appellee, to find that he was a passenger at the time of the injury. The instruction does not, in terms, require a finding that he was a “passenger,” but it does require the finding of facts which establish the relation of passenger and carrier.
The next instruction is the ordinary one in reference to the measure of damages, and advises the jury that if appellee “was injured and sustained damages as charged in his declaration, then it will be the duty of the jury,” etc. It is said that this instruction disregards the question whether appellant was guilty of the negligence charged and whether appellee was in the exercise of due care. He was not injured as charged in the declaration unless the appellant was guilty of the negligence therein averred, and unless appellee, at the time of receiving the injury, was in the exercise of due care. This instruction did not specifically require the jury to consider the instructions of the court in determining the question of appellant’s guilt. It dealt only, however, with the situation that would arise in case the jury determined to find in favor of appellee. This instruction contained no direction to the jury as to the course to be pursued by them in determining the guilt or innocence of the appellant. As stated in Chicago and Alton Railroad Co. v. McDonnell, 194 Ill. 82, in considering a like defect in an instruction on this subject, “the fault of the instruction has no relevancy to the measurement of the amount of damages, therefore we think it safe to assume that no prejudice resulted to appellant by reason of the error.” In the case at bar the jury were advised by the eighth instruction given at the request of appellant that they “should look solely to the evidence for the facts and to the instructions of the court for the law of the case, and find your verdict accordingly,” which, we think, cured the defect now under consideration, if it could, in any event, be regarded as material.
Appellant, among others, asked three instructions, numbered, respectively, 3, 21 and 22, each of which, in substance, advised the jury that if appellee, at the time he received the injury, was not a passenger of the appellant but was a trespasser upon its property he could not recover. The court gave the instruction numbered 3 and refused those numbered 21 and 22. Appellant complains of the refusal of the two last mentioned, and says that the third stated the proposition abstractly while the other two applied it to the facts of this case, and that if the court did not desire to give all, the third should have been refused and the twenty-first and twenty-second given. Where a party asks more than one instruction, stating, in varying language, the same proposition, his complaint that the court refused the one which the party deems most favorable to his cause and gave the other does not deserve extended notice. Appellant could have avoided this difficulty by presenting to the court only that one of these three instructions which was to it most satisfactory. Indiana, Illinois and Iowa Railroad Co. v. Otstot, 212 Ill. 429.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.