delivered the opinion of the court.
It is contended by counsel for appellant that the court erred in admitting evidence as to a failure to ring a bell or give other warning of the approach of the engine, because the narr. declares only upon negligence in moving the cars while appellee was about to enter the car in question, and does not specifically declare upon negligence in failing to give him warning. We are of opinion that the learned trial court did not err in admitting the evidence. Whether the evidence was competent as establishing a basis of recovery or not, it was at least competent as part of the res gestae and as bearing upon the exercise of due care by appellee in attempting to enter the car at that time. If it was incompetent as a basis of recovery because the appellee had not declared upon negligence in failing to give warning, yet this did not warrant its exclusion when offered for other and proper purposes. If appellant had wished to raise the question now presented, it should have proffered an instruction limiting the effect of the evidence. C. G. Ry. Co. v. Kriz, 94 Ill. App. 277.
The instruction proffered was inapt for this purpose, for it went too far and directed the jury to altogether exclude from their consideration the evidence as to the ringing of the bell. This instruction could not be given, for the jury should have considered the evidence at least as bearing upon the exercise of care by appellee in attempting to board the car. Iroquois Fur Co. v. McCrea, 91 Ill. App. 342.
It is therefore unnecessary for us to determine whether the allegation of negligence here presented is a general allegation coming within the rule as announced in C. C. R. Co. v. Jennings, 157 Ill. 274, and in C. G. Ry. Co. v. Carroll, 189 Ill. 273, or an allegation of specific negligence, which would exclude proof of any other specific negligence. In either event the trial court did not err in admitting the evidence or in refusing the instruction.
We are also of opinion that the allegation of negligence is sufficient to sustain a recoven7 upon proof of a wrongful moving of the engine against the car which appellee was in the act of entering. The gist of the negligence is not merely a failure to warn, nor is it the force or violence with which the engine was moved. The negligence was in the moving of the engine against the car at all while appellee was in a position of peril. Whether the employe of appellant who moved the engine should have anticipated such peril of appellee by reason of knowledge of the custom of employes of the Fulton Company to enter the standing cars at that time and place, was a question for the jury.
The engineer testified: “I know that had been the custom. * * * Sometimes they got onto the cars and sometimes they didn’t get on the cars.”
The evidence shows that no attempt was made to discover if any one was thus in peril, before the engine was moved. McAndrews, the switchman, who gave the signal to the engineer to back up, testified: “ I didn’t see any one between the cars before I gave the signal to back up.” He did not testify that he looked to see. Adamson, foreman of the Fulton Company, a witness called by appellant, testified: “ Any one could see these men, if they stood up.”
We’think that the question of appellant’s negligence was a question for the jury, and we can not say that the verdict is manifestly against the weight of the evidence-in this regard. Hor can we say that the action of appellee in climbing upon the brake-beam or coupling-link to get upon the car establishes j?er se negligence upon his part. Others were doing the same thing. Broughton, a fellow employe, was standing in the car putting on his overalls when appellee undertook to get upon the car. Appellee could not see the engine approaching from where he stood, before getting upon the car.
Adámson testified on behalf of appellant: “I don’t believe this man could have seen the engine. I couldn’t have seen it. You would have to be out from the track twenty to twenty-five feet from where I was.” He also testified that when he learned that the train was ready to move he had “ told the boys there, and my nephew, to stay in the car and go down to Peck Court with it.” It does not appear that appellee heard this direction or that he was near enough to have heard it.
The injury sustained by appellee resulted in loss of his foot and part of the leg. We can not agree with the contention of counsel for appellant that the award of damages as reduced by the remittitur is now for an excessive amount.
The whole matter of negligence of appellant and exercise of care by appellee was properly for the jury to determine. Ho error in procedure appearing and the verdict not being against the manifest weight of the evidence, we affirm the judgment.