By the second instruction given on behalf of the plaintiff below, the jury were directed that if they found from the evidence that the servants of the defendant having charge of the engine attached to a car, caused said car to be suddenly started, at the time and place stated in the declaration, and while the plaintiff, without any fault on his part, was in the act of getting on board of said car, and that he was thereby injured, and suffered the loss of his foot and a portion of his leg, and that the plaintiff was without fault, then the verdict must be for the plaintiff.
The time, stated in the declaration as above referred to, was July 15, 1882. That could have no possible bearing upon the question of defendant’s negligence, and the reference to it was therefore immaterial, any farther than that it was before suit brought. The place was in the defendant’s switch yard, at 14th street, in Chicago. So that the instruction in effect declares that the mere fact of causing the car to be suddenly started in such switch yard, while the plaintiff, without any fault on his part, was in the act of getting on board of such car, constituted negligence fer se, or, in other words, negligence as matter of law irrespective of any other attending circumstances. That this was erroneous is too plain to justify either discussion or citation of authorities. ISTor can the error be disregarded because there was a conflict of testimony as to material facts, with an apparent preponderance in favor of the defendant in respect thereto, so that the instruction was presumably prejudicial to the defendant.
The judgment of the court below will, for the error pointed out, be reversed and the case remanded.
Judgment reversed.