Illinois Central R. R. v. McNicholas

Mr. Justice Shepard delivered the opinion of the court. Under the circumstances disclosed by the evidence the questions whether the defendant was guilty of negligence in the operation of its train, and whether the plaintiff was guilty of contributing to the injury received by him, because of his manner of performing the duty he was engaged in, were for the jury to determine. All these matters were determined by the jury on evidence that was in all controlling respects, essentially conflicting, and if there were no substantial error of law committed in the trial the verdict should not be disturbed. As to errors of law, the appellant lays particular stress upon two of the plaintiff’s instructions, which were given, as to what facts constituted negligence. These instructions were as follows: “ 2. If you believe from all the evidence that the defendant ran its engine and train toward and upon the plaintiff while he was at work for it, if he was, upon its track, without having the headlight of such engine lighted at the time, and that at the time the track was obscured by a dense or heavy fog, and also if you believe from all the evidence that the defendant should under all the circumstances shown in evidence in the case as a measure of ordinary care in order to protect the plaintiff from unreasonably great risk of injury, if the same wás unreasonably great, have lighted the headlight, then the defendant was guilty of negligence in failing to light the same, if it did fail to light the same. “ 3. If you believe from all the evidence that the defendant ran its engine and train forward and upon the plaintiff while he was working for it, if he was, upon its track, and in so doing, if it did, it failed to give him reasonably sufficient and timely warning of the approach of1 the same and in the exercise of ordinary care on its part to afford him reasonable protection from injury by said engine and train it ought to have been given him such warning and failed to do so, then you are instructed that the defendant was guilty of negligence.” Whether or not the headlight was lighted and burning at the time of the accident was a subject about which the evidence was in direct conflict, with a probable preponderance in favor of the defendant, in numbers of witnesses and their opportunities of knowing. The fact was, clearly, not so certainly established as that different and reasonable men might not reasonably differ about it. The failure to have the headlight burning at a time when the fog was dense, and when the plaintiff-had been sent out by his superior officer to make an inspection that might, in the absence of due care for his safety in the operation of the trains by the defendant, be attended with peril to him, was competent evidence of a very important character, but it did not amount to negligence, as a matter of law. The ultimate fact of negligence or no negligence would still have been a subject about which fair and reasonable-minded jurors might legitimately differ in their conclusions, upon a consideration of all the evidence in the case. And what we have said applies equally to the third instruction concerning the failure by defendant to give reasonably sufficient and timely warning to plaintiff of the approach of the train. These were all questions of fact to be decided on evidence that was conflicting. As said in Chicago and Iowa R. R. Co. v. Lane, 130 Ill. 116: “It is only when the conclusion of negligence necessarily results from the statement of fact, that the court can be called upon to say to the jury that a fact establishes negligence as a matter of law, and that if the conclusion of negligence, under the fact stated, may or may not result, or shall depend on other circumstances, the question is one of fact for the jury.” Again in Wabash Ry. Co. v. Brown, 152 Ill. 484, Mr. Justice Phillips states the rule to be: “ Where the evidence on material facts is conflicting, or where on undisputed facts fair-minded men of ordinary intelligence may differ as to the inferences to be drawn, or where on even a conceded state of facts a different conclusion would reasonably be reached by different minds, in all such cases negligence is a question of fact. * * * With all the facts considered, if there is a reasonable chance of conclusions differing thereon, then it is a question for a jury. ISTegligence may become a question of law, where from the facts admitted or conclusively proved there is no reasonable chance of different reasonable minds reaching different conclusions. It may also become a question of law if a single material fact is conlusively shown or uncontradicted, the existence or non-existence of which is conclusive of a right of recovery.” See also C. & E. I. R. R. Co. v. Driscoll, 70 Ill. App. 91 The verdict was a reasonable one under the facts shown by the record, if any recovery is permissible to appellee, but in view of the erroneous instructions referred to, the judgment will have to be reversed. Eeversed and remanded.