delivered the opinion of the court.
At the close of the plaintiff’s testimony appellant presented a motion in writing to exclude all the evidence from the jury on behalf of plaintiff, and to give the following instruction : “ The court instructs the jury to find the defendant not guilty.” The court denied the motion and refused the instruction, to which ruling appellant duly excepted. It is urged that the trial court erred in those respects.
There was evidence tending to show that appellee had approached the cable train for the purpose of taking passage thereon; that reaching the front platform at the south end of a trailer car, he turned around to help his wife, who he supposed was directly behind him, on the car; that she had meanwhile gone to the rear platform and wras getting on there; that, as appellee stood looking for her, he was almost immediately struck by an approaching horse car of the appellant, which he did not see, and was knocked down and injured. There is testimony to the effect that the horses drawing this car AArere moving “ at a pretty good trot;” that the car did not stop at all, but kept on its Avay after the accident, and disappeared around the corner, going Avest on Lake street.
This evidence presented questions which it Avas proper to submit to the jury. Whether or not appellee was in the exercise of proper care and caution is a question of fact. C., St. L. & P. Ry. Co. v. Hutchinson, 120 Ill. 587-596. It was a question of fact whether driving the car at such a rate of speed when passing a cable train which had stopped to receive passengers, was or was not negligence under all the circumstances. West Chi. St. Ry. Co. v. Annis, 62 Ill. App. 180. The motion to exclude, and to instruct the jury to find for the defendant, was in the nature of a demurrer to the evidence, and hence admits all that the testimony proves and all that it tends to prove. It is only where there is no evidence before the jury on a material issue, in favor of the party having to maintain such issue affirmatively, upon Avhich the jury could reasonably find in bis favor, that the court may exclude the evidence, and direct the jury to find against him. Frazer v. Howe et al., 106 Ill. 563-573. We find no error in the denial of appellant’s motion and refusal to direct a verdict in its favor at the close of the plaintiff’s case.
It is said the damages are excessive. We do not find, however, any evidence of passion or prejudice on the part of the jury, and after a careful consideration of the testimony as to the nature and extent of appellee’s injuries, are unable to say that the verdict is excessive, although we might have been better satisfied if it was less.
It is urged that the court erred in giving appellee’s third instruction. In this we can not concur. We think it states, the rule requiring ordinary care for his own safety on the part of appellee with substantial accuracy, and that the same is true of the phraseology referring to the negligence causing the alleged injury as charged in the declaration.
It is said that the court erred in refusing an instruction relating to the question of appellee’s contributory negligence. But the rule of law on this subject is fully, and, so far as we perceive, with substantial accuracy stated in another instruction given at the instance of appellant’s counsel. No reason is suggested why it was necessary or proper to repeat it in another form, differing in no material respect.
The judgment of the Circuit Court must be affirmed.
Mu. Presiding Justice Horton.
I do not concur in the above opinion because the proof does not sustain the cause of action stated in the declaration.