Chicago Terminal Transfer R. R. Co. v. Schmelling

Mr. Justice Waterman delivered the opinion of the court. The relation of carrier and passenger does not cease until the passenger has had a reasonable opportunity to leave the place where his journey ends and passengers are discharged. Elliott on Railroads, Sec. 1592. Was appellee injured before he had, or in consequence of his failure to avail himself of such opportunity ? It is said that he alighted upon the wrong side of the car; this may be, but he left the car by a way provided by appellant and without warning not to use it. If appellant did not wish to have him gét off as he did it should have forbidden his so doing. Penn. Co. v. McCaffery, 173 Ill. 169. Appellant says: “Appellant could have prevented appellee from going where he did go, by barring his exit from the east platform of the car, or by placing a barrier between its tracks and those of the O., B. & Q. or by giving him direct warning by words spoken or written. For all that appears in this case, either from the allegations of the declaration or > - the proofs, these things might have been done, and as it was upon appellee to allege and prove that they were not done it must be presumed they were done in the absence of such allegations and proof.” We can not agree to appellant’s conclusion that “ it must be presumed ” these things “ were done, in the absence of . such allegations and proof.” The alighting of appellee upon the cinder and stone covered ground upon which he stepped in getting off the car, did not terminate his relation as a passenger. He was then in a place wherein the distance between passing cars and engines would be from four and a half to five and a half feet. A very uncomfortable as well as dangerous position. Appellant urges that he could have walked in safety thirty feet north to Twenty-sixth street and thus escaped injury. He might or he might not have so done without harm. The ordinarily careful person remains as short a time as possible close to a railroad track along which trains are passing. The wind from the coming Burlington train might have thrown him off his feet; or a little swerving of . his body might have brought it in collision with car or locomotive. The description of the situation did not impress court or jury below and it does not impress us as showing an exercise of that care for the safety of appellee which the law made it the duty of appellant to exercise. He was a common laborer, but the duty to afford him a reasonably safe egress to a public street was the same as if he had been the President of the United States. He was not injured by a train run by appellant but in his endeavor to escape from the insecure place in which appellant left him. There was a curve in the track of the C., B. & Q. road and neither Schmelling nor the man who immediately followed him out of appellant’s car saw the O., B. & Q. train until it was close upon appellee, and in his haste to get away from the dangerous spot upon which he alighted he stepped upon its right of way and was struck by its engine. That the company whose passenger he was failed to discharge its duty to him we have no doubt. Whether he exercised ordinary care was a question for the jury, as to which the evidence is such that we can not say its conclusion is opposed to the preponderance of the evidence. Complaint is made of the following instruction: “ The court instructs the jury that if the plaintiff has proven all the material allegations of his declaration by a preponderance of the evidence, in manner and form as he has alleged them in his declaration, he is entitled to recover in this case.” The instruction should not have been given. It is not the function of a jury to determine what are or what are not material allegations in a declaration. T., St. L. & K. C. R. R. Co. v. Bailey, 145 Ill. 159; Lumaghi v. Gardin, 53 Ill. App. 667. The jury were, however, fully informed by other instructions as to what must be proven in order that the plaintiff might recover, notably the first, second, third, sixth, ninth, tenth, twelfth and thirteenth given at the instance of the defendant. The erroneous instruction was therefore productive of no harm and the judgment should be reversed because of it. Finding no error requiring a reversal of the judgment it is affirmed.