INSTRUCTIONS.

instructions: (1) That they authorize a recovery if the deceased was in the exercise of ordinary care while on the engine, excluding, it is said, a consideration of his negligence in placing himself in that position; (2) that the instructions assume that the defendant's servants were guilty of negligence in the running and handling of the engine; and (3) that they base the plaintiff's right to recover upon the negligence of defendant's servants in running and handling the engine," without confining it to the specific negligence named in the declaration." None of the objections are tenable. The instructions are as follows: "(2) The court instructs the jury that if they believe from the evidence that Nelson Brown, the deceased, was rightfully on the defendant's engine, as is alleged in the declaration in this cause, and that while he was on said engine, he was using ordinary care on his part for his personal safety, and was, by and through the carelessness and negligence of the defendant's servants in running and handling said engine, thrown from said engine and injured, from which said injuries the said Nelson Brown died, then the jury should find for the plaintiff, and give her such damages as they deem a fair and just compensation with reference to the pecuniary injuries resulting from such death to the wife and next of kin of the said deceased, not exceeding five thousand dollars. (3) The court instructs the jury that if they believe from the evidence that Nelson Brown, deceased, was the husband of the plaintiff in this suit, and that the said Nelson Brown was rightfully upon the defendant's engine by the invitation and direction of the conductor and manager of the same, and he was using ordinary care for his safety, and was by and through the carelessness and negligence of the defendant's servants in running and handling the said engine, thrown from the said engine to the ground, and run over by a car and injured, from which injuries the said Nelson Brown afterwards died, then the jury will find for the plaintiff, and assess her damages at such sum as they believe from all the evidence she has sustained, not exceeding five thousand dollars."

The jury were required to find that the deceased was rightfully on the defendant's engine as alleged in the declaration. In respect to the second objection, the instructions under consideration went to the jury with many for the appellant, among which (the sixteenth) was the following: "The jury are instructed that if they believe from the evidence that a man of ordinary care and prudence would not ride upon a locomotive engine in the position and manner that said Nelson Brown was shown to have been riding at the time of the accident, and you further believe from the evidence that his injury was caused by his not exercising ordinary care and prudence, then the plaintiff cannot recover. We do not think the jury could have understood plaintiff's instructions

as holding that she might recover, although her intestate was guilty of negligence in getting upon the foot-board of the engine, or remaining there up to the time of the accident, and especially so, when considered in connection with the one above quoted, and given for defendant. The question of the negligence of defendant is, by plaintiff's instructions, fairly submitted to the jury as a question of fact to be determined from the evidence. There is no force in the third objection. The negligence charged was in respect of the manner of running and operating the engine in making the running switch. The jury could not have understood these instructions, in the light of the evidence, as referring to any other acts of negligence than those charged in the declaration.

The refusal of the ninth instruction asked by appellant is also assigned for error. It was as follows: "The jury are instructed that the defendant was under no obligation to furnish the said Nelson Brown transportation from its track to the stock-yards; and, in getting upon the engine used for the transportation of the car-load of stock, for the purpose of riding to the stock-yards, he assumed the ordinary risks and perils of that mode of travel; and if the jury believe from the evidence that his injury was the result of the usual and ordinary peril attending such mode of travel, then the plaintiff cannot recover." There was, at least, evidence tending to show that appellant was to carry the deceased to such yards, and the instruction was faulty in assuming the contrary as a matter of law. The instruction was modified by submitting the question of the obligation of appellant to furnish transportation of the deceased to the stock-yards to the jury, to be found by them upon the evidence, and also submitting to the jury the question of the negligence of appellant in causing the injury to the deceased. In this there was no error.

The fifteenth instruction, as asked, was as follows: "The jury are instructed that if the said Nelson Brown intended to ride upon the engine or car, common prudence dictated that he should put himself in the safest place possible, and if the jury believe from the evidence that it was obvious to a person of ordinary prudence that the place where said Brown stationed himself to ride was much more dangerous than the position on the top of the car, then he was guilty of negligence, and the plaintiff cannot recover." This instruc tion was modified and given, and it is not claimed that the modification is erroneous; but it is said that the instruction should been given as asked, and that its modification was therefore error. What would have been "the safest place possible," is a matter about which men equally prudent might widely differ. Therefore what common prudence dictates in a particular case is ordinarily a question of fact. In addition to this, the instruction, as asked, wholly

ignores the question whether the deceased did not take the position he did by direction of appellant's servants in charge of the train, and of their negligence in operating the same. The modification properly left the question of Brown's negligence and that of the appellant to the jury, to be determined by them from the evidence. What has already been said will dispose of the modification made to appellant's nineteenth and twentieth instructions.

covery.

The first, second, third, fifth, sixth, seventh, fourteenth, seventeenth, and eighteenth instructions asked by appellant were refused, and the propriety of this ruling is also questioned. As already said some of them proceed upon the theory that the acts of Brown, in being upon the foot-board of the engine, was such contributory negligence as would, as a matter of law, prevent a reWhat has been said will dispense with the necessity of their separate consideration. The first instruction, however, is as follows: "The jury are instructed that the evidence in the case will not sustain a verdict for the plaintiff, and their verdict should therefore be for the defendant." Such an instruction will not be given where there is evidence tending to prove the material facts necessary to maintain the issues for plaintiff, from which the jury may find the facts essential to a recovery. There being, as we have seen, evidence in this case tending to prove the issues on the part of the plaintiff, the court properly refused the instruction.

The second refused instruction, which was to the effect that, if the jury believed from the evidence that the rules of the company forbade the engineer in its service to allow any person not in its employment to ride upon its engine, etc., then the deceased was not rightfully upon the engine, and the plaintiff could not recover, and also the third, fourth, and sixth of appellant's series refused have been heretofore considered. Each of these instructions ignored the knowledge of the deceased of the rules of the company, and of the apparent authority of the engineer to act in respect of the matter therein mentioned; and preclude a recovery, although the injury may have been the result of the gross negligence of the

company,

and the deceased may, under the circumstances shown by

the evidence, have been in the exercise of ordinary care.

Appellant's fifth instruction is as follows: "It is alleged and proved that the deceased undertook to ride on defendant's engine from the main line of defendant's road to the Union Stock-yards. The court instructs you, as a matter of law, that in this position he was not a passenger in defendant's train, and could not claim any

the

gine

engineer's helper invited or permitted him to ride on the enthe place furnislied by the defendant's company for passengers to if he did permit or invite him to do so, he knew it was not ride, and in taking that position he assumed all the risks and perils

incident to that method of travel." It cannot be said, as a matter of law, that the deceased was not a passenger on the defendant's train. Whether he was a passenger depended upon the facts proved. If the company gave the deceased a pass to the stockyards, or engaged to take him there over its road, and its servants, clothed with apparent authority to act for the company in that regard, directed him to take passage on the engine, and undertook to carry him on the same, these facts were proper to be considered by the jury in determining whether the deceased was a passenger or not. While the company may not, upon their freight trains or locomotives, ordinarily take passengers, or hold them out to the public for that purpose, yet, if the company, through its authorized agents, accept a passenger for reward upon such trains or engines, there is neither reason nor authority for holding that they are not bound to exercise reasonable care and diligence for the safety of such passengers. The instruction was properly refused.

The seventh instruction was properly refused because it made the plaintiff's right of recovery depend upon the authority of the switchman or engineer to direct the deceased to take passage upon the engine, without reference to his apparent authority, and whether the deceased knew of such want of authority or not.

Appellant's fourteenth instruction is substantially identical with the fifteenth, as asked, which has been heretofore considered, and for the same reason there assigned was properly refused. Whether the position occupied by him upon the foot-board of the engine was not absolutely the safest place he could occupy upon that train matters not, if he was not, under the circumstances shown, guilty of negligence in accepting it. It does not necessarily follow that a passenger guilty of some negligence, slight in its character, cânnot recover for the personal injury resulting from the gross negligence of the carrier. Railroad Co. v. Johnson, 116 Ill. 206; Iron & Steel Co. v. Martin, 511 Ill. 358; Rolling-stock Co. v. Wilder, 116 Ill. 100. This instruction also entirely ignores the alleged carelessness or negligence of appellant's servants in operating the engine. The same objection obtains to appellant's eighteenth refused instruction.

Taking into consideration the peculiar facts of this case, to which the law has been applied by the trial court with substantial accuracy, we find no such error in the record as will authorize a reversal, and the judgment of the appellate court will therefore be affirmed.

CRAIG, J., dissents.

Passenger Riding in Dangerous Place. It is contributory negligence in a passenger to occupy voluntarily a position of danger on the train, where the position has contributed to his injury and was, in itself, so dangerous that a man of ordinary prudence would not have taken it. H. & T. C. R. v. Clem

mons, 55 Tex. 88; s. c., 8 Am. & Eng. R. R. Cas. 396; Higgins v. H. & St. J. R., 36 Mo. 418; Kentucky Cent. R. Co. v. Thomas, 79 Ky. 160.

But, if the defendant has by its own act thrown the plaintiff off his guard and given him good reason to believe that vigilance was not needed, the lack of such vigilance on the part of plaintiff is no bar to his claim for damFowler v. Baltimore, etc., R. Co., 18 W. Va. 579; s. c., 8 Am. & Eng. R. R. Cas. 480; Penna. R. Co. v. Ogier, 35 Pa. St. 60; Ernst v. Hudson Ř. Co., 35 N. Y. 9.

ages.

Thus, in Fowler v. Baltimore, etc., R. Co., 8 Am. & Eng. R. R. Cas. 480, plaintiff was on a stock train in charge of cattle. Just before the express train going west came up he left the caboose to look after the stock, in pursuance of an assurance from the conductor that the stock needed attention and his train was entitled to the main track. A few minutes afterward, while attending to the stock, the express train swept by the siding without giving any signal and plaintiff was injured. Held, that he had not been guilty of contributory negligence and could recover. Johnson, J., said: The plaintiff was thrown completely off his guard by the act of the defendant and supposed there was no danger, and he was justified in apprehending none; and apprehending no danger under these circumstances he was not guilty of negligence, if he did not look for a train. There was no necessity to look. The conductor told him there was no danger; in effect, that while he went to look after the cattle it was not possible for a train to pass.

Occupying Perilous Position by Direction or Consent of Conductor.Where a passenger rides in a known place of danger by the direction or invitation of the conductor, but in violation of the company's rules, in case of the passenger's injury the question arises, has he been guilty of contributory negligence such as will relieve the company of responsibility, or is the assent of the conductor sufficient to charge the company with the consequences of

his act.

General Rule. The courts generally hold that where the passenger assumes a position of danger by the invitation of the conductor, and is injured while in that position, he is not held to be guilty of contributory negligence. Burns . Bellefontaine R. Co., 50 Mo. 139; Clark v. Eighth Ave. Co., 36 N.Y. 135; Kentucky R. Co. v. Thomas, 1 Am. & Eng. R. R. Cas. 79; O'Donnel v. Allegheny, etc., R. Co., 59 Pa. St. 239; Jacobus v. St. Paul, etc., R. Co. 20 Minn. 125; L. R. & Ft. S. R. v. Miles, 40 Ark. 298; Kentucky Cent. R. Co. v. Thomas, 79 Ky. 160, 165; Lawson v. Chicago, etc., R. Co., 24 N. W.

618; Dunn

v.

Grand Trunk R. Co., 58 Me. 187.

Rep.

In Kentucky Cent, R. Co. v. Thomas, 79 Ky. 160, the court say: "If the in consequence of the position occupied by the passenger, or if the accident was of such a nature as was likely to occur in one portion of the train as another, or if he occupied the place with the knowledge or consent of the conductor, his right of recovery will not be affected by the fact that he was at an improper place." ants of the carriers, unless such obedience leads to known danger, which a pruPassengers are warranted in obeying the directions of the agents and servLouisville, etc., R. Co. v. Kelley, 13 Am. & Eng. R. R. Cas. 1; Pool v.

dent man would not encounter.

Chicago,

etc., R. Co., 56 Wis. 227.

Penna, R. Co. v. Houghland, 78 Ind. 206;

a friend arrived at the station just after the train departed. An employee In Nashville, etc., R. Co. v. Erwin, 3 Am. & Eng. R. R. Cas, 465, E. and of the company who had charge of the trains, trainmen and rolling-stock, invited them to get on an engine which was at the station, and would take them to the train which would stop at a bridge a short distance from the

station.

The engine overtook the train and ran into it, and E. to avoid the