Lake Erie & Western Railroad v. Morain

Mr. Justice Baker delivered the opinion of the Court: In this action on the case, brought by appellee, against appellant, to recover damages for injuries received while alighting from a train, there was verdict and judgment in the trial court in favor of the former, and that judgment was affirmed in the Appellate Court. The judgments of the courts below conclusively settle all questions of fact in favor of the appellee. The first instruction given for appellee was inaccurate, in that it omitted to state, as a condition precedent to the right of recovery, that appellee should have been in the exercise of ordinary care at the time the injury was received. This constituted reversible error, unless it can be said that the defect was cured by other instructions, or that the appellant was not injured thereby. In Willard v. Swanson, 126 Ill. 381, one of the instructions for the plaintiff was defective for the same reason that this instruction was defective. The court, there, refused to reverse the judgment, and on the ground that the doctrine that the plaintiff could not recover unless it appeared from the evidence that he was in the exercise of ordinary care, was clearly and directly stated in another instruction given for plaintiff and in several given for the defendant, and that the jury could not have been misled by the omission to state that doctrine in the challenged instruction. In Chicago and Alton Railroad Co. v. Johnson, 116 Ill. 206, there was an omission to state in an instruction the requirement of ordinary care by the plaintiff for his own safety. This court there said: “That requirement was so prominently set forth as essential to recovery in other instructions, both on the part of plaintiff and defendant, that we are satisfied no prejudice could have resulted to plaintiff from its omission in the second instruction. See, also, Spies v. The People, 122 Ill. 1; Tomle v. Hampton, 129 id. 379; Chicago West Division Railway Co. v. Ingraham, 131 id. 659. In the case at bar, the requirement of ordinary care and. • caution on the part of the plaintiff at the time of the injury was stated in the second instruction for appellee, in the sixth, instruction for appellant, and in the second and third modified instructions given for appellant. This is not a case where the-instructions given for appellant contradict those given for appellee, and the rule announced in one series of instructions is-in conflict with that announced.in the other series, and the-jury is left to select and act upon either rule. Here, the second instruction for appellee and the instructions for appellant supplemented and explained the instruction of which complaint is made. The first instruction for appellee, for want of the qualification or explanation that at the time of the injury the plaintiff must have been in the exercise of ordinary-care, was subject to criticism; but it should be, and we must presume was, by the jury, read and construed in connection with and in the light of the other instructions given by the-court. The instructions, as a whole, presented the matter here at issue fully and fairly, and there was no conflict between them, and they were easily reconcilable with each other, and it would be unreasonable to conclude that the jury were-probably misled in respect thereto. Besides this, the jury, in their special findings, expressly found that the train did not stop a sufficient length of time to enable all the passengers desiring to stop’ at Ellsworth to alight from the train by-the exercise of ordinary diligence, and that the plaintiff could not,, under the circumstances of the case, have left the train safely by the'exercise of ordinary care and diligence. These findings, and the interrogatories which they answered, show that the question of the degree of care exercised by appellee was called to the attention of the jury and. was considered by them, and it must be presumed that in connection therewith they took into consideration the rule laid down in the second instruction for appellee and in several of those given for appellant. We think that under the circumstances shown by the record the defect in said first instruction was supplied and cured by other instructions, and that appellant suffered no detriment on account thereof. It is claimed that the trial court erred in refusing to submit to the jury the following special interrogatories: “ Third—How long did defendant’s train stop at Ellsworth ? “Fourth—Did plaintiff alight from the platform of the car to the station platform, and then endeavor to regain the car platform, or run along the station platform with the train ? “Seventh—Did plaintiff, with his brother and the witness Vandervoort, stand on the platform of the car, or elsewhere on the train, after it had stopped at Ellsworth, without attempting to get off until it had started again? “Eighth—Did plaintiff receive his injury in attempting to get off the train while it was in motion ? “Ninth—Did any of the trainmen consent to or encourage plaintiff’s attempt to leave the train while it was in motion?” Answers to said questions would have furnished merely evidentiary or probative facts, and not ultimate facts, or facts from which the ultimate facts would necessarily result. The rule is, that the special interrogatories to be submitted to a jury, under the statute, must relate to the ultimate facts, ,and not to mere evidentiary facts that tend, more or less, to establish the ultimate facts upon which the rights of the parties depend. (Chicago and Northwestern Railway Co. v. Dunleavy, 129 Ill. 132; Terre Haute and Indianapolis Railroad Co. v. Voelker, id. 540; Chicago, Rock Island and Pacific Rail way Co. v. Clough, 134 id. 586.) There was, therefore, no error in the action of the court in refusing to submit said interrogatories to the jury. We concur in the views expressed in the opinion of the Appellate Court in respect to the modifications niade by the trial court in the first, second, third and fourth modified instructions, and think that there was no error in making such modifications. The first and third refused instructions were not based upon the evidence. The substance of the second refused instruction was contained in other instructions which were given. By the fourth refused instruction the appellant sought to take from the jury the determination of a question of fact. There was no error in refusing to give any of said instructions. Appellee stated, on his cross-examination, that he was not out of the car between Saybrook and Ellsworth, and was not on the platform at Arrowsmith, the next station east of Ells-worth. The court refused to permit one Middleton, a witness for appellant, to testify that he saw appellee get off the train at Arrowsmith on the evening that he was injured, and remain off until it had started, and then run alongside of it and climb ■ on while it was in motion. This testimony was inadmissible as primary evidence, since it tended to raise a collateral and immaterial issue, and it was not competent as impeaching testimony, for the reason that the matter sought to be contradicted was immaterial, and was drawn out by appellant on cross-examination. We find no substantial error in the record. The judgment, of the Appellate Court is affirmed. ■ Judgment affirmed.