Hr. Justice Ball
delivered the opinion of the court.
The contentions of appellants are: First, the court erred' 'in refusing the peremptory instruction requested by the defendants; second, the court erred in giving plaintiff’s first and second instructions; and third, the damages are excessive.
The peremptory instruction is based upon the pleadings and the evidence. The declaration charged that the plaintiff was a passenger on said car, or was in the act of stepping on said car for the purpose of becoming a passenger. It is contended that the evidence showed he did not intend to become a passenger, but, at the time of the accident, had gone to the corner in question simply to put his daughter on the car, and was injured while handing her baby to her.
It is settled law that the plaintiff must recover, if at all, upon his declaration, and that he cannot charge one species of negligence and recover upon proof of negligence of a different character. C. & A. Ry. Co. v. Bell, 209 Ill., 25.
If the plaintiff was not a passenger, or did not intend to become a passenger, defendants did not owe him that high degree of care required from the common carrier for the protection of its passengers, but owed him the duty of ordinary care only; namely, to use ordinary care that the plaintiff was not injured by reason of the sudden starting of the car, or by reason of an omission to give the customary signals for the starting of the car.
The claim that the plaintiff was not a passenger is based upon a statement made by him in cross-examination. In his examination in chief he had testified that he was going to attend a meeting of the Western Star Order, of which he was recording secretary, at Binder’s Hall. The following occurred in his cross-examination:
“Q. Isn’t it a fact that you just simply went down there to help your daughter get on the car and get started home that night?
A. Yes.
Mr. Lipsox : What is the answer ?
The Court : Yes.
Mr. Lipsoh : I ask that the court put that question to the witness.
Me. Baily : Ho, I object to it.
Judge Heely : I object to it. The witness answered.
The Court : You can get him on the re-direct.”
At the close of the cross-examination the court asked the plaintiff: “When you put your baby, your grandchild, into your daughter’s arms, did you intend to take that car ?”
A. “Yes, I was ready to go on the car. I was going to the meeting on that car, and my daughter was going to get off when she got to her home.”
There is ample evidence in this record to justify the jury in finding that the plaintiff was a passenger in this car or was in the act of stepping on the car for the purpose of becoming a passenger at the time of the injury.
The conductor testified that after the car had run about a block he went to the daughter and collected her fare, and then looked around for the plaintiff, when she said, “The gentleman jumped off,” or “He jumped off.” This evidence is not res gestee, nor was the statement made in the presence of the plaintiff. Its effect is to discredit the daughter, but it cannot be extended farther.
The plaintiff testifies: “When .Mrs. Brooks got on the car was standing still. She took the baby from me. I held the baby on that hand, -and I held with that hand to the car, and I was ready to- go on the car from the first step and the car push and I fall down.”
Mrs. Brooks says: “The car jerked and he fell back. He fell backwards and his head was west. I had the baby wheij, he fell. The car jerked and I was on the car screaming.”
Harry B. Gimlin testified: “He also had a little child and he was putting his foot on the place for him to get into the car, and as he was there the grip started all of a sudden, the lever opened, and threw him.”
Opposed to this is the testimony of the two conductors and the motorman of this train, each of whom testifies that when they left Hamlin avenue the train started up in the usual way. It is to be noted that each of these witnesses declares he knew nothing of this accident until he reached the car barns upon the return trip. It is not strange that in this regard the jury believed the evidence of the plaintiff and disbelieved that of the defendants.
The first instruction given at the request of the plaintiff reads as follows:
“1. If you believe from the evidence that the plaintiff got on the car in question for the purpose of riding on the said car and was ready, willing and able to pay his fare, then it was the duty of the defendant, Chicago Union Traction Company, to do all that human care, vigilance and foresight could reasonably do consistent with the character and mode of conveyance adopted and the practical prosecution of their business to prevent an accident to the plaintiff while he was riding upon the said car or going upon the same, and if you further believe from the evidence that the defendant, Chicago Union Traction Company, failed to use such care and diligence and that by reason thereof the plaintiff was injured as alleged in the plaintiff’s declaration while the plaintiff was in the exercise of reasonable care for his own safety, then you should find the defendant, Chicago Union Traction Company, guilty.”
In objecting to this instruction the defendants say it assumes that the plaintiff was a passenger or intended to become a passenger upon the car. As we have seen, there was ample evidence to justify the jury in so finding.
Again, they say it does not limit the right of recovery to the negligence charged in the declaration. We do not so read the instruction. It says, if the “defendant the Chicago Union Traction Company failed to use such care and diligence, and that by reason thereof- the plaintiff was injured as alleged in the plaintiff’s declaration,” etc. The phrase “as alleged in the plaintiff’s declaration” relates back to the use of diligence by that defendant as well as to the injury to the plaintiff. Any other interpretation is too technical impractical use. Further, by given instruction No. 11 the jury were instructed that unless the plaintiff was a passenger on the car, or svas in the act of boarding or of stepping on the car for the purpose of becoming a passenger, he could not recover. But admitting that this instruction is not clearly drawn, the propositions of law it contains are correct when applied to the facts of , the case as found by the jury, and they were not misled thereby. From a careful examination of the record, we are convinced that in this case substantial justice has been done, and that a retrial would probably résult in another verdict for the plaintiff. So believing, we cannot set aside the judgment fpr errors of a technical character which do not go to the substantial merits of the case. This common sense position is sustained by Wilson v. The People, 94 Ill., 299; C. & E. I. Ry. Co. v. Rung, 104 Ill., 641; Zimm v. The People, 111 Ill., 52; Beard v. Maxwell, 113 Ill., 442; Gore v. The People, 162 Ill., 259; and W. C. St. Ry. Co. v. Maday, 188 Ill., 310.
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Hr. Justice Ball
delivered the opinion of the court.
The contentions of appellants are: First, the court erred' 'in refusing the peremptory instruction requested by the defendants; second, the court erred in giving plaintiff’s first and second instructions; and third, the damages are excessive.
The peremptory instruction is based upon the pleadings and the evidence. The declaration charged that the plaintiff was a passenger on said car, or was in the act of stepping on said car for the purpose of becoming a passenger. It is contended that the evidence showed he did not intend to become a passenger, but, at the time of the accident, had gone to the corner in question simply to put his daughter on the car, and was injured while handing her baby to her.
It is settled law that the plaintiff must recover, if at all, upon his declaration, and that he cannot charge one species of negligence and recover upon proof of negligence of a different character. C. & A. Ry. Co. v. Bell, 209 Ill., 25.
If the plaintiff was not a passenger, or did not intend to become a passenger, defendants did not owe him that high degree of care required from the common carrier for the protection of its passengers, but owed him the duty of ordinary care only; namely, to use ordinary care that the plaintiff was not injured by reason of the sudden starting of the car, or by reason of an omission to give the customary signals for the starting of the car.
The claim that the plaintiff was not a passenger is based upon a statement made by him in cross-examination. In his examination in chief he had testified that he was going to attend a meeting of the Western Star Order, of which he was recording secretary, at Binder’s Hall. The following occurred in his cross-examination:
“Q. Isn’t it a fact that you just simply went down there to help your daughter get on the car and get started home that night?
A. Yes.
Mr. Lipsox : What is the answer ?
The Court : Yes.
Mr. Lipsoh : I ask that the court put that question to the witness.
Me. Baily : Ho, I object to it.
Judge Heely : I object to it. The witness answered.
The Court : You can get him on the re-direct.”
At the close of the cross-examination the court asked the plaintiff: “When you put your baby, your grandchild, into your daughter’s arms, did you intend to take that car ?”
A. “Yes, I was ready to go on the car. I was going to the meeting on that car, and my daughter was going to get off when she got to her home.”
There is ample evidence in this record to justify the jury in finding that the plaintiff was a passenger in this car or was in the act of stepping on the car for the purpose of becoming a passenger at the time of the injury.
The conductor testified that after the car had run about a block he went to the daughter and collected her fare, and then looked around for the plaintiff, when she said, “The gentleman jumped off,” or “He jumped off.” This evidence is not res gestee, nor was the statement made in the presence of the plaintiff. Its effect is to discredit the daughter, but it cannot be extended farther.
The plaintiff testifies: “When .Mrs. Brooks got on the car was standing still. She took the baby from me. I held the baby on that hand, -and I held with that hand to the car, and I was ready to- go on the car from the first step and the car push and I fall down.”
Mrs. Brooks says: “The car jerked and he fell back. He fell backwards and his head was west. I had the baby wheij, he fell. The car jerked and I was on the car screaming.”
Harry B. Gimlin testified: “He also had a little child and he was putting his foot on the place for him to get into the car, and as he was there the grip started all of a sudden, the lever opened, and threw him.”
Opposed to this is the testimony of the two conductors and the motorman of this train, each of whom testifies that when they left Hamlin avenue the train started up in the usual way. It is to be noted that each of these witnesses declares he knew nothing of this accident until he reached the car barns upon the return trip. It is not strange that in this regard the jury believed the evidence of the plaintiff and disbelieved that of the defendants.
The first instruction given at the request of the plaintiff reads as follows:
“1. If you believe from the evidence that the plaintiff got on the car in question for the purpose of riding on the said car and was ready, willing and able to pay his fare, then it was the duty of the defendant, Chicago Union Traction Company, to do all that human care, vigilance and foresight could reasonably do consistent with the character and mode of conveyance adopted and the practical prosecution of their business to prevent an accident to the plaintiff while he was riding upon the said car or going upon the same, and if you further believe from the evidence that the defendant, Chicago Union Traction Company, failed to use such care and diligence and that by reason thereof the plaintiff was injured as alleged in the plaintiff’s declaration while the plaintiff was in the exercise of reasonable care for his own safety, then you should find the defendant, Chicago Union Traction Company, guilty.”
In objecting to this instruction the defendants say it assumes that the plaintiff was a passenger or intended to become a passenger upon the car. As we have seen, there was ample evidence to justify the jury in so finding.
Again, they say it does not limit the right of recovery to the negligence charged in the declaration. We do not so read the instruction. It says, if the “defendant the Chicago Union Traction Company failed to use such care and diligence, and that by reason thereof- the plaintiff was injured as alleged in the plaintiff’s declaration,” etc. The phrase “as alleged in the plaintiff’s declaration” relates back to the use of diligence by that defendant as well as to the injury to the plaintiff. Any other interpretation is too technical impractical use. Further, by given instruction No. 11 the jury were instructed that unless the plaintiff was a passenger on the car, or svas in the act of boarding or of stepping on the car for the purpose of becoming a passenger, he could not recover. But admitting that this instruction is not clearly drawn, the propositions of law it contains are correct when applied to the facts of , the case as found by the jury, and they were not misled thereby. From a careful examination of the record, we are convinced that in this case substantial justice has been done, and that a retrial would probably résult in another verdict for the plaintiff. So believing, we cannot set aside the judgment fpr errors of a technical character which do not go to the substantial merits of the case. This common sense position is sustained by Wilson v. The People, 94 Ill., 299; C. & E. I. Ry. Co. v. Rung, 104 Ill., 641; Zimm v. The People, 111 Ill., 52; Beard v. Maxwell, 113 Ill., 442; Gore v. The People, 162 Ill., 259; and W. C. St. Ry. Co. v. Maday, 188 Ill., 310.
We find no reversible error in the second instruction given at the request of the plaintiff.
The question of the amount of damages in an injury case is primarily for the jury under the guidance of proper instructions. The evidence in this case justifies the statement that the - plaintiff was thrown from the car to the' ground with such violence that he was rendered unconscious, and blood flowed from his ears and mouth, and that he was transformed thereby from a strong, well man in the prime of life, of good hearing and unruptured, to a sick man, prematurely old, incapacitated for pleasure, wholly deaf in one ear and partially deaf in the other, with an inguinal hernia so large that it necessarily interferes with his movements, and cannot be reduced by manipulation. It is true that there is evidence given by distinguished experts to the effect that this hernia could not come from the accident. There is also abundant evidence to the contrary. Two witnesses testify that while the plaintiff lay upon the ground at the scene-of the accident, partially unconscious, he drew up his legs and placed his hands upon his groin. Doctor Levitón, who-examined the plaintiff within three days of the injury, found this hernia by digital examination, and advised the immediate use of a truss. Doctors Weber, Stettauer and Campbell, men of high rank in their profession, in answer to a-hypothetical question based upon the evidence, each stated that the fall from the car could have produced the hernia. The objection that the damages are excessive is not well taken. '
Finding no reversible error in this record, we affirm the-judgment of the Circuit Court.
Affirmed.