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this subject was objectionable and should have been excluded, then all the testimony of appellant upon the same subject was objectionable and should have been excluded.
A further objection was made by the appellant to the form of the hypothetical questions, in which the expert testimony upon this subject was called for. Very few of the questions thus asked by appellee's counsel were objected to by appellant's counsel. A hypothetical question may be put to a witness if there is evidence tending to prove the facts stated in the question. (Howard v. People, 185 Ill. 552). The hypothetical questions, asked by appellee, were based upon the state of facts existing at the time appellee was injured, that is to say, upon the circumstances as they actually existed when the switching crew, of which he was a member, entered their own yard where the accident occurred. The question was not whether appellee was rightfully on the foot-board of the engine while crossing the tracks of other companies outside of the yard in question, but whether it was a proper place for him when the engine was pushing the two cars in their own yard to a place where he was to uncouple them. The testimony tends to show that, in order to do that work, it was necessary for him to be upon the foot-board. We fail to see that there is any force in the objection made to the form of the questions addressed to the expert witnesses.
Fourth-An objection is also made by appellant to the action taken by the trial court in reference to the special interrogatories submitted to the jury, calling for special findings upon their part.
In the first place, the court declined to give the interrogatories submitted by appellant, and prepared interrogatories of its own motion, which were submitted. This was not error; we have decided that a trial court may refuse requests for special findings, and substitute others on its own motion. (Chicago and Alton Railroad Co. v. Pearson, 184 Ill. 386; Norton v. Volzke, 158 id. 402).
By the first interrogatory submitted by appellant, the jury were asked whether it would not have been safer, if appellee had placed himself on the rear foot-board of the engine on the night in question, as the train was entering the yard of the Clover Leaf. This interrogatory was properly refused, because an affirmative answer to it could not have controlled a general verdict had it been in favor of appellee. (Chicago and Northwestern Railway Co. v. Dunleavy, 129 Ill. 133). The second interrogatory, which required the jury to find whether “the act of plaintiff, in negligently placing himself on the foot-board of the engine next to the car," contributed to cause the injury, was properly refused because it assumed that appellee was negligent. The third interrogatory, which required the jury to find whether the accident to the plaintiff was caused by the negligence of one Fox, who was on the first car of the train, was properly refused, because it called for an evidentiary fact only, and, so, could not have controlled a general verdict for appellee. Upon this subject the Appellate Court in deciding this case well say: "Although Fox and appellee were fellow-servants of a common master, and engaged in the same line of duty, yet that master was not appellant; hence the fact, that they were fellow-servants, could not be availed of by appellant to protect itself against the negligence of Fox, if appellant's negligence contributed to the injury. If the inquiry had been whether the negligence of Fox was the sole cause of the injury, the condition of the matter would have been different from what it now is. Although the negligence of Fox might have caused the injury, yet the negligence of the servants of appellant might also have contributed to the injury, and an affirmative answer, that did not fully negative the latter, would have established an evidentiary fact only. The reasons given, why the court did not err in refusing to give the third interrogatory, apply as well to the fourth interrogatory."
The interrogatories submitted by the court of its own motion, were as follows:
“1st. If you find a general verdict for the plaintiff in this case, you will also answer and return with your verdict the following questions:
“Did the act of the plaintiff, John Harrington, in placing himself on the foot-board of the engine next to the car contribute to cause the injury he received?
"2d. Was the plaintiff, John Harrington, using proper care for his own safety by being upon the foot-board of the engine between the car and the engine when he was injured?"
The jury answered “No” to the first interrogatory, and · "Yes" to the second. As is stated by the Appellate Court, the two interrogatories, submitted by the court of its own motion, contained all that was important in the fifth and sixth interrogatories asked by the appellant, and, hence, no error was committed in refusing to submit the latter to the jury.
The main ground, however, upon which the appellant charges that the interrogatories submitted by the court on its own motion were erroneous, is that they began with this statement: “If you find a general verdict for the plaintiff in this case.” The contention is that it was erroneous to put the words, "for the plaintiff," after the words, "general verdict." It would have been better if the court had left out the words "for the plaintiff;" but their insertion could not have done appellant any harm.
The third section of the act in regard to special findings and special verdicts, provides that, when a special finding of fact is inconsistent with the general verdict, the former shall control; and we said in Chicago and Northwestern Railway Co. v. Dunleavy, supra (p. 144): "This necessarily implies that the fact to be submitted shall be one which, if found, may in its nature be controlling. That can never be the case with a mere evidentiary fact. * * * Such inconsistency can arise only where the fact
found is an ultimate fact, or one from which the existence or non-existence of such ultimate fact necessarily follows, and that is never the case with that which is only prima facie evidence of the fact sought to be proved." In Chicago and Northwestern Railway Co. v. Dunleavy, supra, we also said that an error committed in the giving of special interrogatories, or in the answers of the jury to the same, cannot be regarded as being prejudicial to the defendant, "unless it can be seen that answers to said questions most favorable to the defendant, which of course would have been answers in the negative, would have constituted a finding inconsistent with the general verdict." Interrogatories asked by the defendant are framed for the purpose of controlling any general verdict that may be returned for the plaintiff. In the case at bar, the answers, which might be given to the interrogatories framed by the court, might have had the effect of controlling a general verdict for the plaintiff, but could have had no effect in controlling a general verdict for the defendant. If the jury had answered, that the act of the plaintiff, John Harrington, in placing himself on the foot-board of the engine next to the car, did contribute to cause the injury he received, and if they had answered that the plaintiff was not using proper care for his own safety by being upon the foot-board of the engine between the car and the engine, then the special finding would have been inconsistent with the general verdict in favor of the plaintiff, and such general verdict would have been controlled by the special finding. But, in case of a general verdict for the defendant, an affirmative answer to the first interrogatory framed by the court, and a negative answer to the second interrogatory framed by the court, would have been consistent with such general verdict for the defendant, and not inconsistent with it. If, in case of a general verdict for the defendant, the first interrogatory had been answered in the negative, and the second in the affirmative, it may not have affected the general verdict in favor
of the defendant, because the evidence may have shown that the defendant was not guilty of negligence; and, if the defendant was not guilty of negligence, the plaintiff was not entitled to recover, even if he was not guilty of contributory negligence. The interrogatories, submitted by the court were designed to secure a special finding as to certain matters which might supersede the general verdict, if the verdict should be for the plaintiff, and it was not improper to put the matter to the jury in that way. “The facts, upon which a jury should be asked to find specially, should be material facts, which, if found, would be controlling." (Chicago and Northwestern Railway Co. v. Dunleavy, supra; Terre Haute and Indianapolis Railroad Co. v. Voelker, 129 Ill. 540; Pike v. City of Chicago, 155 id. 656). The theories of appellant, as embodied in the special interrogatories submitted by it, were presented in the instructions given by the court.
It is also said that the interrogatories given by the court were defective in limiting the exercise of due care to the time when the plaintiff was injured. This criticism is without force, because we have held that the words, "at the time,” when used in an instruction in such cases, refer to the whole transaction or series of circumstances, and not to the precise moment when the injury occurs. Here, the words "in placing himself upon the foot-board of the engine," etc., refer to the circumstances which preceded that act, as well as the act itself of standing on the foot-board of the engine. (Chicago and Alton Railroad Co. v. Fisher, 141 Ill. 614; Lake Shore and Michigan Southern Railway Co. v.Ouska, 151 id. 238; McNulta v. Lockridge, 137 id. 270; Lake Shore and Michigan Southern Railway Co. v. Johnsen, 135 id. 653.)
Fifth-Counsel for appellant discusses certain questions of fact, which are settled by the judgments below, and which it is not proper for us to consider. One of these questions of fact is, whether or not the appellant was guilty of negligence. This was submitted to the jury