Hoehn v. Chicago, P. & St. L. Ry. Co.

Mr. Justice Sample delivered the opinion of the Court. The material facts, as disclosed by the evidence and as shown in the statement, would justify the jury in finding, first, that the appellant knew the conductor of the freight train had no right to carry him as a passenger, at the time in question; second, that he knew or connived at the procuring of whisky and cigars for the conductor of the train to induce him to allow Stark and himself to ride on the train to Ed wards ville, without paying any fare, and that the conductor was so induced to act; third, the conclusion of law upon this state of facts would be, that he was not a passenger for reward, as averred in the first count of the declaration, nor a passenger under any lawful’ agreement with the conductor that was binding upon the appellee, as averred in the second count of the declaration, so as to impose upon the appellee that duty of care or treatment arising out of the law of that relation. T. W. & W. R. R. Co. v. Beggs, 85 Ill. 801; C., B. & Q. R. R. Co. v. Mehlsach, 131 Ill. 61-64. A person does not become a passenger by inducing the conductor, in disregard of his duty, and in fraud of the rights of the company, to permit him to ride without the payment of fare. T. W. & W. Ry. Co. v. Brooks, 81 Ill. 292, 295. The means used to secure the consent of the conductor to ride without the payment of fare, which resulted in both the conductor and brakeman becoming intoxicated, while in charge not only of valuable, but dangerous property if not operated by sober men, in no way lessens the vice of appellant’s conduct or mitigates the injury done to appellee thereby. It follows from the above conclusion that the appellee was under no obligation to the appellant to stop its train at the depot at Edwardsville in order that he might alight on the platform. That duty was not to wantonly be an aggressor toward third persons, whether they were on or off the train. C., B. & Q. R. R. Co. v. Mehlsach, 131 Ill. at p. 65. This brings us to the charge that the injury to appellant was wantonly inflicted by the conductor forcing him to jump from the train while it was rapidly in motion. This was a question of fact for the jury, which, in answer to a special interrogatory, found that the conductor did not force the appellant to jump from the car while the train was in motion. On the contrary, the jury found, in answering another interrogatory, that the appellant deliberately selected a place at which to jump off said train while in motion, without any force being used to compel him to do so. There was evidence to support these findings of fact. Stark, the appellant’s companion, got off the train some sixty yards further down the track, as he testified, without injury, when the train was running at a slow rate of speed. The train came to a full stop within a few hundred feet after appellant got off. There does not seem to be any reason or motive that would induce the conductor to force appellant off the car while the train was in rapid motion, when he was so soon to stop his train. There was no quarrel of any kind. The same motive that would have induced the conductor to force appellant from the train, would have applied to Stark as well, and yet there is no pretense that any force was applied to him. Again, the train could not have been running twelve or fifteen miles an hour when appellant jumped, and running very slow when Stark got off sixty yards farther down the track. Even if the conductor did tell the appellant it was safe, in his opinion, to jump off while the train was in motion, if not induced thereto otherwise, and he thought it was unsafe, such act would be contributory negligence that would bar a recovery, had he been a passenger. C. & A. R. R. Co. v. Randolph, 53 Ill. 510. But he was not a passenger. Particular objection is made to the third and fifth instructions given for the appellee; we think they properly state the law as applicable to the facts, as found by the jury in this case, or as applicable to the facts as disclosed by this record. The instructions offered on behalf of appellant and refused by the court, so far as they correctly stated the law, were in substance embodied in the first instruction given. If there were errors as to ruling on the admission of evidence, they were not material as affecting the verdict actually returned. Believing that substantial justice has been done, the judgment is affirmed.