McHale v. Chicago City Railway Co.

Mr. Justice Brown delivered the opinion of the court. We see nothing in this record to justify a belief that the plaintiff did not have a fair trial of the issue raised both by his pleadings and evidence, namely, whether or not he was injured, as he claimed in both declaration and testimony, by the sudden starting of a car on which, as it was standing still, he was attempting to mount. The plaintiff in error indeed claims that the evidence has nothing to do with the matter, because the bill of exceptions, prepared by himself, does not purport to state all the evidence, but only what the evidence tended to prove. He says, as we understand it, that we cannot, in such a case, in considering the propriety of the instruction complained of, take into account anything but the pleadings, and cites as authority for this position Costly v. McGowan, 174 Ill. 76. That case only decides that if the reviewing court holds an instruction erroneous as applied to the pleadings and the statement of the bill of exceptions that the evidence was conflicting, it cannot, in the absence of all the evidence, assume that the error in the instruction was harmless. It does not hold that in considering the question whether or not an instruction was erroneous or misleading, we may not take into account the basis on which the plaintiff himself puts his case in all the evidence introduced by him in support of it. In this case we think that the declaration, as set out in the statement hereto prefixed, distinctly charges the negligence of the defendant to be a failure to hold the ear motionless after it had stopped long enough for the plaintiff to get on. The plaintiff’s counsel declares the language of the declaration clear and its meaning obvious—a statement to which in the letter we agree. But if they mean to imply, as the context suggests, that the language clearly and obviously can cover negligence not consisting in starting a car from a standstill while plaintiff was getting on it, then we must emphatically disagree with them. The contrary appears quite “clear and obvious” to us. Even without reference to any condition of the evidence, we fail to see how the instruction complained of could have been misleading. It did not do more than declare that the specific allegation of negligence on which the plaintiff in his declaration wholly bases his case, must be in the opinion of the jury proven or he could not recover. This is a doctrine of the law in Illinois that cannot be denied, and its force is not lessened by the many cases which hold that it is not negligence per se to get on or off a moving car. When, in addition to this situation of the pleading, the plaintiff asserts and the trial judge certifies that the evidence for the plaintiff tended to prove that the plaintiff while in the exercise of ordinary care for his own safety, attempted to board a street car at a time when said' car was at a standstill, and,then and there took hold of the rear handle of said' car, and had placed one foot upon the step, when said car started with a sudden and violent jerk, whereby the plaintiff was thrown and fell upon the pavement; and that the evidence for the defendant tended to prove, on the other hand, that the plaintiff attempted to board the said car when the car was in motion and was going at the speed of five or six miles an hour, without previous stopping or slowing up, and in so attempting, failing to get on the step of the car, fell to the pavement and was injured; and the plaintiff neither asserts nor the court certifies anything else material about the •evidence—this condition of the record may certainly make proper an instruction directing the attention of the jury to the single issue thus presented by both pleadings and evidence, although the same instruction might possibly, in a different state of either, and would probably in a different state of both, be misleading. This being the view that we take of the matter, we do not think it necessary to discuss and distinguish cases cited and commented on by counsel. It should be remembered as to some of them that it is not always erroneous to give an instruction which it is not error to refuse. The judgment of the Circuit Court is affirmed. Affirmed.