Spannagle v. Chicago & Alton Railroad

Phillips, J. Plaintiff in error brought suit to recover damages for injuries received in an attempt to get aboard the train of defendant in error at Mitchell, "a station on defendant’s road. The evidence shows at that station a depot was provided with a warm, lighted room, supplied with seats, for the accommodation of passengers awaiting the arrival of trains. An agent was in charge of that depot, and then present. Defendant’s train, passing at the time of the injury,' was not on time. The plaintiff claims he was injured by reason of the train not remaining at the depot platform long enough to afford sufficient time for passengers to get aboard. To determine that question, the relation between plaintiff and defendant is of importance in determining the duty of the defendant. The relation between passenger and carrier is contractual. It was the duty of the plaintiff, if he desired to become a passenger on defendant’s cars of that train, to become such passenger by express or implied contract. The plaintiff claims that he had left East St. Louis that evening, having purchased a round trip ticket; but that fact did not create the relation of passenger and carrier with reference to this train. Bo express contract being shown, before a duty rested on the defendant the plaintiff must in some manner indicate his purpose of becoming such passenger, and place himself in charge of the carrier. He gave no notice to the agent of the company, nor did he seek the room provided for passengers to await the arrival of the train to indicate his purpose, or in any manner place himself in care of the carrier. The train arrived at the platform and one passenger, who was in the waiting room, took the train, which stopped long enough for him to get aboard. The plaintiff was at a boarding house and saloon, between two and three hundred feet from the depot, and from eighty to one hundred feet from the nearest point of the platform. When he became aware of the approach of the train he endeavored to reach the depot to take the train and arriving at the platform after the train was in motion endeavored to get aboard, and was injured. Hot having placed himself in care of the carrier, there was no relation between him and the carrier by which it became the duty of the carrier to hold its train for any length'of time. For any injury he received while endeavoring to get aboard the train while in motion he must seek redress as a stranger. His act in this regard was gross negligence. The trial court instructed the jury to find the defendant not guilty, and judgnrent was entered against the plaintiff for costs. Plaintiff sues out this writ of error, and insists the evidence should have been left to the jury. In Simmons v. C. & T. R. R. Co., 110 Ill. 340, it was held: “ When the whole of the evidence, if believed by the jury, is so insufficient to support a verdict in his favor that the court would not permit one to stand, it is the duty of the"court to instruct the jury, as a matter of law, that, there is not sufficient evidence to warrant a verdict for the plaintiff.” The rule here declared has been approved by the Supreme Court in L. S. & M. S. R. R. Co. v. O’Conner, 115 Ill. 234; Bartelott v. International Bank, 119 Ill. 259. In Quinn v. I. C. R. R. Co., 51 Ill. 495, it was held : “ It is urged, however, that the question should have been left to the jury. The practice adopted by the court can not be safely followed in many cases. Whenever there is evidence tending to prove the issue, the plaintiff has a right to take the verdict of a jury; but if this had gone to the jury, and they had found for the plaintiff, the. court should have set aside their verdict, or, if it had refused to do so, it would have been done by this court. As no injustice has been done the plaintiff we can not reverse the verdict.” To the same effect is Willson v. Williams, 14 Wend. 148. It was said by the Appellate Court of this district, in Taylor v. D. O. & O. R. R., 10 Ill. App. 811: “ Where a verdict is shown by the evidence to be so clearly right that had it been otherwise the court would have set it aside, such verdict will not be disturbed merely for the reason there is error found in the instructions. In such a case it appears affirmatively that the party was not injured by such error, and hence has no right to complain. We regard a portion of defendant’s instructions as being manifestly erroneous; but is the verdict so clearly right that had it been in favor of plaintiff in error we would be required to reverse and refuse to permit it to stand? If so, then this judgment should be affirmed; but if not, then it must be reversed.” To the same effect is Burling, Adm’x, v. I. C. R. R., 85 Ill. 18. In this case it appears from the evidence the plaintiff was not entitled to recover; the verdict was right; and even if there was .error in the instruction the judgment should stand. The other question presented is upon the admissibility of evidence offered for defense; that evidence did not and could not affect the verdict under the instruction of the court. The judgment is affirmed. Judgment affirmed.