Before MAJOR, Chief Judge, and FINNEGAN and SWAIM, Circuit Judges.
This is an appeal from a judgment of the District Court which awarded the plaintiff, Kenneth W. Fiedler, damages of $20,000, for personal injuries, against the defendant, Chicago and North Western Railway Company. The alleged errors relied on arose out of the trial court's refusal to grant the defendant's motion for judgment notwithstanding the verdict and its refusal to grant the defendant a new trial.
The plaintiff was a passenger on a train of the defendant at the time of the accident which resulted in the plaintiff's injuries. The jury, in addition to its general verdict in favor of the plaintiff, gave an affirmative answer to the following special interrogatory:
"Do you find from a preponderance or greater weight of the evidence that the plaintiff at the time and place alleged in his complaint was thrown or caused to fall from the train in question by an unnecessary or unusually sudden or violent jerk, jar or lurch of the train or coach upon which he was riding?"
In the oral argument before this court counsel for the defendant apparently conceded that there was sufficient evidence to justify the submission of this special interrogatory to the jury.
The principal contention of the defendant in this court is that the evidence showed that the plaintiff was guilty of contributory negligence as a matter of law and that it was, therefore, the duty of the trial court to grant the defendant's motion for a judgment notwithstanding the verdict.
The evidence shows that on the night in question the plaintiff, on his way from his work to his home, boarded the defendant's train at Elmhurst, Illinois, to ride to the defendant's Austin Station. The train involved consisted of a steam engine and three coaches. Only the last coach was lighted and open for the use of passengers. The plaintiff was accustomed to taking this particular train nightly on his way home from work. On the night of the accident the plaintiff sat down near the front end of the lighted coach. The plaintiff and two women were the only paid passengers in the coach but there were several of the defendant's employees who were also riding in the coach.
In accordance with long established custom, the conductor sat at the rear and on the north side of the coach. He sat at that particular location so that, as the train came into a station, he could raise the window next to him and look ahead along the station platform to see if there were any passengers waiting to board the train. If there were no passengers waiting to get on the train and if no one was getting off at that station, the conductor would then give the engineer a signal to go ahead. On this night when the train in which the plaintiff was riding reached the Austin Station, the plaintiff left his seat and went out of the front door and on to the platform of the coach. On the door through which he passed there was a sign reading: "Please do not get on or off moving trains. Keep off platform until trains stop." The plaintiff was followed out of the coach by two of the defendant's employees who were also getting off at that station. The train was then moving on a straight track and at a speed of only about three or four miles an hour. As the train continued to slow down for the Austin Station, the plaintiff stepped down to the first or second step from the platform on the front of the coach. When he was in that position there occurred what the plaintiff described as a forward jerk or quick lurch of the train. Plaintiff said that this threw him off the train to the ground and caused his injuries.
The conductor of the train said that when he looked out of the window at the Austin Station to see if there were any passengers waiting to get on the train, he saw no passengers waiting to board the train but that he did see passengers going through the front door of the coach on to the platform preparatory to getting off. It is apparent from the testimony in this case that, as the train approached the station at which they were going to get off, passengers customarily went out on the platform of the coach before the train stopped. It is also apparent that, in spite of the sign on the coach door warning against passengers being on the platform before the train stopped, the defendant's employees not only did not object to this practice but also indulged in it themselves, as shown by the fact that two of the employees were on the platform of the coach when this accident occurred.
Under the circumstances disclosed by the evidence in this case, can we say as a matter of law that the plaintiff was guilty of contributory negligence in going out on the platform or in stepping down on to the steps while waiting for the train to come to a complete stop? We think not.
At the time of the accident the plaintiff was about 34 or 35 years of age. He was apparently an active man. He was a former basketball player and had never before that time sustained an injury. At the time of the accident he was burdened with no packages and his arms were, therefore, entirely free. There were steel bars for handholds on each side of the steps for the use of passengers when boarding or leaving the train.At the time of the accident the plaintiff was holding on to one of these handholds. He did not remember which one. Under these circumstances it would appear that there would have been no real danger to the plaintiff as he stood on the steps of the platform holding on to a steel bar, except for the negligence in the operation of the defendant's train.
Since the plaintiff was a regular passenger on this same train we may assume that he knew of the practice and custom of the passengers and employees of going out on the platform before the train stopped. If the plaintiff knew this, he could assume that the defendant's employees in charge of the train also knew of this practice, and the plaintiff also had the right to assume that those in charge of the train would not unnecessarily endanger passengers and employees who might be on the platform or steps of the coach by negligently causing the train to suddenly lurch or jerk. All of these matters might properly have been considered by the jury in determining whether the plaintiff failed to use due care for his own safety and whether such failure was a contributory cause of his injuries.
Under the Illinois law where, as here, there was no evidence of wilful and wanton injury inflicted on the plaintiff by the defendant, the plaintiff had the burden of proving that there was no failure on his part to exercise ordinary care which contributed to his injury. Illinois Central Railroad Co. v. Oswald, 338 Ill. 270, 274, 170 N.E. 247. But unless this court can say from a consideration of all of the evidence that the plaintiff was guilty of contributory negligence as a matter of law, we cannot say that it was error for the trial judge to refuse the defendant a judgment notwithstanding the verdict and the answer to the special interrogatory. In our consideration of this question we must bear in mind that failure of the plaintiff to ...