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question on the night when the accident occurred. The freight cars of the appellant were delivered to the Clover Leaf on January 27, 1897, between four and five o'clock in the morning while it was dark and snowing. The foreman of the switching crew of appellant was one St. Clair, and Bennett was his helper. Bennett swears, that “the cars were delivered on the left to the lead toward the freight house; the track connected with the lead track by a switch; the switch was set (or closed) for the lead track; it was opened by St. Clair; cars were placed in there; the switch was not closed, because the cars did not clear the main lead."
It thus appears that, when the switching crew of the appellant entered the freight yard, the side switch, upon which they left appellant's freight cars was closed, and that appellant's switching crew, after opening the switch and placing the cars upon the side track, did not leave the switch as they found it,- that is, closed, - but left it open, and left the hindmost car projecting upon the lead track. If appellee's theory was correct, that the custom was to shove the cars on the side-track in the clear, that is, so that they would be clear of the lead track, and to leave the switch as they found it, then appellant's servants did not conform to the custom; because, finding the switch closed, they did not leave it as they found it, but left it open, and did not leave the hindmost car clear of the lead track, but left it projecting over it. Therefore, the testimony of the appellee tending to establish the custom, as contended for by appellee, tended also to establish negligence on the part of appellant's servants.
The testimony of the appellant tends to show, that the custom in reference to delivering cars in the Clover Leaf yard from the Chicago and Alton railroad was to shove the cars in on the side switch track and leave the switch as they used it, that is, open. That is to say, if the switch was open, the custom is alleged to have been to leave it open, and if it was shut, the custom is alleged
to have been not to leave it shut, but to open it, and leave it open. The tendency of appellant's testimony was to show that the custom was, after shoving the cars upon the side switch track, to leave the switch track open, even though a car should project over the lead track. If the custom was as contended for by appellant, then the testimony of the appellant tended to show that it was not guilty of negligence, inasmuch as it conformed to the usual custom in such cases, as contended for by it.
Whether the custom was as contended for by appellee, or was as contended for by appellant, the testimony was conflicting, and there were a large number of itnesses upon both sides. It was for the jury to determine the question, and, upon this question of fact, the judgment of the trial court in favor of appellee and the judgment of the Appellate Court, affirming the judg. ment of the trial court, are conclusive, so far as we are concerned.
In order to entitle the appellee to recover, it was not only necessary that he should prove such negligence on the part of appellant as caused the injury, but it was also necessary for him to prove that, when the injury occurred, he was in the exercise of ordinary care for his own safety. Upon this branch of the case the trial proceeded upon two different theories, one held by appellee, and one held by appellant.
When the switching crew of the Clover Leaf road entered the freight yard, two freight cars to be left at the freight house were attached to the locomotive, and in front of it, so as to be shoved forward by the engine. When appellee was hurt, he stood upon the front footboard of the engine. The theory of the appellee is that, by being in that position, he was in the exercise of ordinary care for his own safety. One of the helpers of the switching crew, Fox, was on top of the forward of the two cars. It was his duty to look ahead for obstructions upon the track, and to give a signal to his helper, who passed
that signal on to the engineer. It is claimed by appellee, and the proof tends to support the claim, that the appellee could take his station, either upon the second or last car of the two which were being pushed forward, or upon the front foot-board of the engine, and that, in either place, he was able to see any signal given by the first helper, who was on the forward car, and pass it on to the engineer in the cab of the locomotive. The testimony of the appellee tends to show, that it was as much the usage or custom for the second helper of the switching crew to take his position upon the foot-board, as to take it upon the hindmost of the two cars. The testimony tends to show that, in case the train pushed forward by the engine should contain more than two cars, the helper on the foot-board might not be able to see the signal given by his companion on the front car, but that, where the train consisted of only two cars, as was the case here, it was possible to see the signal.
On the contrary, the theory of the appellant was, that the appellee was guilty of contributory negligence in taking his stand upon the front foot-board of the engine, and that it was his duty to have taken his place upon the last of the two cars which were shoved forward by the locomotive. The testimony of the appellant tends to sustain its theory upon this subject.
A large number of witnesses testified in behalf of appellee upon this branch of the case, and a large number also testified on behalf of appellant upon this branch of the case. Their evidence conflicted, and it was the province of the jury to determine, under the instructions of the court, whether the appellee was guilty of contributory negligence in standing upon the front foot-board of the engine, or whether, in taking his position there, he was in the exercise of ordinary care. This question of fact, like the other question of fact in regard to the neg. ligence of appellant, is settled in favor of appellee by the judgments of the lower courts.
It is claimed by the appellant, that the court below erred in giving to the jury the second instruction, which was given for the appellee. The objection to this in. struction is based upon the alleged ground, that it undertakes to summarize the facts necessary to warrant the jury in finding for the plaintiff, but does not recite all the facts. We do not regard the instruction as objectionable in this respect. The instruction is based upon the particular hypothesis or theory contended for by the appellee, and summarizes the elements necessary to a recovery upon that theory without omitting any essen. tial matter. The rule, that
The rule, that an instruction is erroneous which sums up all or a part of the facts which the evidence tends to prove on one side, and omits the facts on the other side, does not apply to an instruction, which merely fails to embody evidence, tending to establish a distinct antagonistic theory. We have said: “All the law requires is that an instruction, based upon some particular hypothesis warranted by the evidence, which undertakes to summarize the elements in the cause essential to a recovery upon that theory, must not omit any essential matter.” (Terre Haute and Indianapolis Railroad Co. v. Eggmann, 159 Ill. 550; City of Chicago v. Schmidt, 107 id. 186; Springfield Railway Co. v. Hoeffner, 175 id. 634; Hanchett v. Kimbark, 118 id. 121). The instruction complained of embodies all the elements necessary to authorize a recovery. The objection made to it implies that evidentiary facts should have been recited, instead of the ultimate facts which formed the issue to be tried. It is not necessary to incorporate all the evidence in an instruction, but only matters which constitute a material issue in the case. The facts alleged to have been omitted are merely circumstances, which form a part of the testimony tending to disprove the plaintiff's cause of action, and are not controlling circumstances. The instruction required the jury to find "from the evidence that defendant's said servants did not exercise ordinary care in placing said cars
upon said switch track so that one of them overlapped said main lead track, and in leaving said switch open;" and this necessarily made the inquiry broad enough to include all the facts and circumstances in any way affecting the question of negligence.
The appellart asked, and the court gave in its behalf, a similar instruction, embodying facts establishing the particular hypothesis or theory for which appellant contended. In the fifth instruction given for appellant there is a summing up of the facts in favor of appellant's theory, as shown by the evidence; and the jury are therein told that, if the facts stated in the instruction, are found to be established by the evidence, the defendant would be entitled to a verdict. The instruction thus given for appellant, while presenting appellant's grounds of defense, did not include all the facts tending to establish plaintiff's right of recovery. A party has no right to complain of an error in an instruction, "when a like error appears in an instruction given at his own request." (Illinois Central Railroad Co. v. Anderson, 184 Ill. 294; Hafner v. Herron, 165 id. 242; Chicago and Alton Railroad Co. v. Sanders, 154 id. 531; Funk v. Babbitt, 156 id. 408; Illinois Central Railroad Co. v. Beebe, 174 id. 13).
In view of what has been said, we do not regard the second instruction, given on behalf of the plaintiff, as being sufficiently defective to justify a reversal of the judgment.
It is also contended that the first instruction given for the plaintiff is erroneous, because it conditions the right of recovery upon the belief of the jury from the evidence “that the injury complained of in this cause resulted from the defendant's negligence, as charged in the declaration.” The instruction complained of specifically sets out the negligence of the defendant and justifies a recovery, if such negligence be proved, “as charged in the declaration." Instructions, thus referring to the allegations of the declaration, have been approved by this