dissenting:
We do not agree with the conclusion that the plaintiff, as a matter of law, was a passenger • while walking on the public street. The rule of law as to what will constitute the relation of passenger and carrier has been firmly established by text books and decisions, which were carefully reviewed and considered in the case of Chicago and Eastern Illinois Railroad Co. v. Jennings, 190 Ill. 478. Upon such review and consideration it was said to be uniformly held that the condition must be such that the passenger is under the care of the carrier and must be at some place under the control of the carrier provided for passengers, so that it may exercise the high degree of care exacted from it. The plaintiff having safely alighted from the defendants’ car started to the place where he expected to take another car, and while walking on the street was not under the care of the defendants nor on any place provided for passengers or using any óf the facilities furnished for passengers but was exercising his right as one of the general public by crossing the street, as he lawfully might. In the Jennings case the doctrine of the Massachusetts court, which is now abandoned, was indorsed and adopted. This court has never decided that the relation of carrier and passenger existed under the facts of this case. In Chicago and Alton Railroad Co. v. Winters, 175 Ill. 293, the plaintiff was accompanying his car-load of sheep to Chicago and at Blooming-ton the car was placed in another train being made up for Chicago. The plaintiff was walking on the east side of the freight train toward the switch yards on the grounds of the railroad company, intending to continue his journey in the caboose of the new train. There is no resemblance between this case and that of North Chicago Street Railroad Co. v. Kaspers, 186 Ill. 246, except that the plaintiff had á transfer ticket. That ticket entitled him to ride on the cable-car line to his destination, and he had got on the step at the front end of the car and was stepping up on the front platform" when the speed of the train was increased and he fell off and suffered the injury for which he sued. In Chicago City Railway Co. v. Carroll, 206 Ill. 318, a trolley pole on the Wentworth avenue car, from which the plaintiff had alighted or was alighting, fell from that car and struck him on the head. He had not got away in safety' from the car as the plaintiff had in this case, in which the plaintiff was not within the care or control .of the defendant or on a place provided for passengers and therefore was not a passenger. Illinois Central Railroad Co. v. O’Keefe, 168 Ill. 115.
Upon the trial of an issue of fact the plaintiff obtained a verdict and judgment for $5500, and the defendants appealed to the Appellate Court, which.held that the plaintiff was not a passenger; that the doctrine of res ipsa loquitur was not applicable to the pleadings in the case, and that the trial court committed errors of law as to both those questions. For such errors the judgment was reversed and the cause remanded to the circuit court for a new trial. The plaintiff then -stated that he had relied upon the doctrine of res ipsa loquitiur and would be unable to produce further evidence of the special negligence upon another trial, and' moved the court to reverse the cause without remanding, which was done. If the Appellate Court was wrong both upon the question whether the plaintiff was a passenger and also whether the doctrine of res ipsa loquitur applied, that fact does not justify an affirmance of the judgment of the trial court. If plaintiff was a passenger, that fact would not entitle him to a verdict for every injury sustained but would only affect the degree of care exacted by law from the defendants. The doctrine of res ipsa loquitur is, that when a thing which has caused an injury is shown to be under the management of the party charged with negligence, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper -care, the accident itself affords reasonable evidence, in the absence of an explanation of the party charged, that it arose from the want of proper care. It is but a rule of evidence, under which a charge of negligence is established prima facie by proof of facts within the rule, and which will justify a verdict unless the prima facie case is met by proof showing that the carrier was not at fault. (Chicago Union Traction Co. v. Giese, 229 Ill. 260.) On the trial the defendants introduced evidence that the switch which carried. the rear trucks around to the west was in proper condition; that there had never been any trouble with it and that an examination immediately after the accident showed nothing the matter with it. The fact that the front trucks passed over the switch in'the usual way tended to prove that the rear trucks swinging around was caused by some condition which the defendants were not bound to anticipate. The defendants also offered evidence that the running apparatus and equipment of the car were all in good condition and not defective and had been running since 5 :3o that morning without any indication of anything wrong. . If the Appellate Court was right in holding that the trial court misapplied the law it was the duty of the Appellate Court to remand the cause for another trial, at which such .errors could be corrected. The plaintiff could not deprive the defendants of the right to present on another trial any evidence they might have to relieve themselves from the charge of negligence, by stating to the Appellate Court that he would be unable to produce further evidence of special negligence upon such trial. This court cannot decide questions of fact in controversy, and on a review of the judgment of the Appellate Court has merely held that that court was .wrong in its rulings on questions of law.