Mr. Justice Magruder
delivered the opinion of the court:
First—It is assigned as error by the appellant company, that the court gave certain instructions for appellee, and refused certain instructions asked by appellant, and gave certain instructions asked by appellant, after the same had been modified by the court.
It is contended by the appellant, that the first instruction given for the appellee, the plaintiff below, is erroneous under the facts of the case. It is contended, that the first instruction, given for the appellee, is objectionable, because it permits the jury to determine whether or not the appellee was in the exercise of. due care and caution for his own safety. Appellant takes the ground, that the acts of the appellee constituted negligence per se, and that, therefore, appellee was not entitled to recover for the injury received by him. It is charged, that appellee stepped from a place of safety on to the freight car, in which he had loaded his hogs, for the purpose of protecting his property while the local freight train was backing up against said car. The objection thus assumes, that the appellee stepped upon or into the car, solely for the purpose of preventing his hogs from leaving the same and, thereby, of protecting his property.
There is testimony, tending to show that the appellee went into, or held on' to, the car, where his hogs were, in order to save himself when the local train approached. He himself so swears. If his purpose in stepping into the door of the car was, in part, to keep his hogs from escaping, it was, also, in part, to save himself from the effects of the approaching collision between the local freight train and the car in question. It was, therefore, a proper question to be submitted to the - jury, whether or not, when the accident occurred, he was in the exercise of due care and caution for his own safety.
It has been held that, if a person places himself in a position of danger merely to save his property, he is guilty of such negligence as will prevent him from recovering damages for a personal injury received in so doing. (Beach on Contributory Negligence,—3d ed.—secs. 44, 44 a). For example, where a man went upon a railroad track at a farm crossing, knowing that a train was approaching, for the purpose of endeavoring to save his cattle by getting them over the track before the train reached the crossing, he was held to be guilty of contributory negligence. (Morris v. Railioay Co. 148 N.Y. 182). So also, where the deceased left his horse and bug'gy standing in close proximity to a railroad track without being tied, and in consequence thereof the horse went upon the track, and the deceased, after he saw a train approaching, went upon the track for the purpose of attempting to save his property, and was struck by the train and killed, he was held to be guilty of contributory negligence precluding recovery. (McManamee v. Missouri Pacific Railway Co. 135 Mo. 440). The doctrine, thus announced, does not, however, apply to the facts of this case. Here, the appellee was loading his hog's from the hog-pen on the side of appellant’s railway track into one of appellant’s cars by means of the stock chute and apron, then in use by him, by permission of the appellant company, and in pursuance of an arrangement and agreement theretofore made with the company. He had paid appellant for the car, and had a right to load it with his hogs for the purpose of shipping them to the market. The local freight train had come in on the main track while appellee was loading his hogs into the car on the side-track, and had stopped upon the main track at a distance of about thirty feet from the car, which appellee was loading. The evidence tends to show, that the servants of the appellant knew that appellee was loading the car on the side-track. The local freight train was moved forward to the north, and was backed through the switch on to the side-track while appellee was loading his hogs. The object of this movement on the part of the local freight train was to take on some wood upon the side-track. Appellee swears, that he did not know that it was a local freight train, but evidently supposed that it was the train which was to take up his car, and carry it with his hogs to Chicago. When he saw the freight train backing down towards the car, he threw back the apron connecting the stock chute with the car, and stepped into the car, and held on to the bar, a plank about six inches wide and two inches thick, across the open door space and about two and one-half feet from the floor of the car. The fireman saw the appellee, and saw what he was doing. The appellee signaled to the fireman twice, and then hallooed to him with the view of inducing him to slacken the speed of the approaching train. The fireman was upon the same engine with the engineer, and, by giving the latter notice, could have retarded the movement of the train. But he did not do so. The result was the collision between the approaching freight train and the loaded car, which was so violent as to throw the appellee from the car to the ground and injure him.
The appellee had no reason to suppose, that, in reply to his signals, the motion of the car would not be so slackened, as to make the concussion slight, and not violent. He had a right to be in the car. Whether or not he should have remained upon the stock chute, or jumped to the ground, or whether he'ought to have stepped into the car as he did, may be a question about which prudent and careful men maj*' differ. He had loaded his stock into the car, and was endeavoring to fasten the door of the car, which he could not do under the circumstances without stepping into the car.
Even if, by stepping into the car, he assumed a risk, allowance may be made for the excitement under which hé acted. (Beach on Contributory Negligence, sec. 44). The fact, that a person voluntarily takes some risk, is not conclusive evidence, under all circumstances, that he is not using due care; and, where a plaintiff is suddenly placed in a position of peril without sufficient time to consider all the circumstances, the law does not require of him the same' degree of care and caution, as it requires of a person who has ample opportunity for the full exercise of his judgment and reasoning faculties. Especially is this so, where the peril has been caused by the fault of the defendant. (Dunham Towing and Wrecking Co. v. Dandelin, 143 Ill. 409). In Wesley City Coal Co. v. Healer, 84 Ill. 126, we said: “It has long" been settled, that a party, having given another reasonable cause for alarm, cannot complain that the person so alarmed has not exercised cool presence of mind, and thereby find protection from responsibility for damages resulting from the alarm.”
Here, the appellee was placed in a position of danger by the act of the appellant’s servants in backing a freight train against the car which he was loading, while he was so engaged in loading it; and, inasmuch as it may be doubtful whether the proper course to be pursued by the appellee was to jump from the chute to the ground, or to step upon the car, the question, whether he was in the exercise of proper care and caution for his own safety, was one which was proper, under the circumstances, to be submitted to the jury. It was so submitted by the first instruction, given for the appellee.
It cannot be said that the act of the appellee in stepping upon the car was neglig'ence per se, or negligence as matter of law.
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Mr. Justice Magruder
delivered the opinion of the court:
First—It is assigned as error by the appellant company, that the court gave certain instructions for appellee, and refused certain instructions asked by appellant, and gave certain instructions asked by appellant, after the same had been modified by the court.
It is contended by the appellant, that the first instruction given for the appellee, the plaintiff below, is erroneous under the facts of the case. It is contended, that the first instruction, given for the appellee, is objectionable, because it permits the jury to determine whether or not the appellee was in the exercise of. due care and caution for his own safety. Appellant takes the ground, that the acts of the appellee constituted negligence per se, and that, therefore, appellee was not entitled to recover for the injury received by him. It is charged, that appellee stepped from a place of safety on to the freight car, in which he had loaded his hogs, for the purpose of protecting his property while the local freight train was backing up against said car. The objection thus assumes, that the appellee stepped upon or into the car, solely for the purpose of preventing his hogs from leaving the same and, thereby, of protecting his property.
There is testimony, tending to show that the appellee went into, or held on' to, the car, where his hogs were, in order to save himself when the local train approached. He himself so swears. If his purpose in stepping into the door of the car was, in part, to keep his hogs from escaping, it was, also, in part, to save himself from the effects of the approaching collision between the local freight train and the car in question. It was, therefore, a proper question to be submitted to the - jury, whether or not, when the accident occurred, he was in the exercise of due care and caution for his own safety.
It has been held that, if a person places himself in a position of danger merely to save his property, he is guilty of such negligence as will prevent him from recovering damages for a personal injury received in so doing. (Beach on Contributory Negligence,—3d ed.—secs. 44, 44 a). For example, where a man went upon a railroad track at a farm crossing, knowing that a train was approaching, for the purpose of endeavoring to save his cattle by getting them over the track before the train reached the crossing, he was held to be guilty of contributory negligence. (Morris v. Railioay Co. 148 N.Y. 182). So also, where the deceased left his horse and bug'gy standing in close proximity to a railroad track without being tied, and in consequence thereof the horse went upon the track, and the deceased, after he saw a train approaching, went upon the track for the purpose of attempting to save his property, and was struck by the train and killed, he was held to be guilty of contributory negligence precluding recovery. (McManamee v. Missouri Pacific Railway Co. 135 Mo. 440). The doctrine, thus announced, does not, however, apply to the facts of this case. Here, the appellee was loading his hog's from the hog-pen on the side of appellant’s railway track into one of appellant’s cars by means of the stock chute and apron, then in use by him, by permission of the appellant company, and in pursuance of an arrangement and agreement theretofore made with the company. He had paid appellant for the car, and had a right to load it with his hogs for the purpose of shipping them to the market. The local freight train had come in on the main track while appellee was loading his hogs into the car on the side-track, and had stopped upon the main track at a distance of about thirty feet from the car, which appellee was loading. The evidence tends to show, that the servants of the appellant knew that appellee was loading the car on the side-track. The local freight train was moved forward to the north, and was backed through the switch on to the side-track while appellee was loading his hogs. The object of this movement on the part of the local freight train was to take on some wood upon the side-track. Appellee swears, that he did not know that it was a local freight train, but evidently supposed that it was the train which was to take up his car, and carry it with his hogs to Chicago. When he saw the freight train backing down towards the car, he threw back the apron connecting the stock chute with the car, and stepped into the car, and held on to the bar, a plank about six inches wide and two inches thick, across the open door space and about two and one-half feet from the floor of the car. The fireman saw the appellee, and saw what he was doing. The appellee signaled to the fireman twice, and then hallooed to him with the view of inducing him to slacken the speed of the approaching train. The fireman was upon the same engine with the engineer, and, by giving the latter notice, could have retarded the movement of the train. But he did not do so. The result was the collision between the approaching freight train and the loaded car, which was so violent as to throw the appellee from the car to the ground and injure him.
The appellee had no reason to suppose, that, in reply to his signals, the motion of the car would not be so slackened, as to make the concussion slight, and not violent. He had a right to be in the car. Whether or not he should have remained upon the stock chute, or jumped to the ground, or whether he'ought to have stepped into the car as he did, may be a question about which prudent and careful men maj*' differ. He had loaded his stock into the car, and was endeavoring to fasten the door of the car, which he could not do under the circumstances without stepping into the car.
Even if, by stepping into the car, he assumed a risk, allowance may be made for the excitement under which hé acted. (Beach on Contributory Negligence, sec. 44). The fact, that a person voluntarily takes some risk, is not conclusive evidence, under all circumstances, that he is not using due care; and, where a plaintiff is suddenly placed in a position of peril without sufficient time to consider all the circumstances, the law does not require of him the same' degree of care and caution, as it requires of a person who has ample opportunity for the full exercise of his judgment and reasoning faculties. Especially is this so, where the peril has been caused by the fault of the defendant. (Dunham Towing and Wrecking Co. v. Dandelin, 143 Ill. 409). In Wesley City Coal Co. v. Healer, 84 Ill. 126, we said: “It has long" been settled, that a party, having given another reasonable cause for alarm, cannot complain that the person so alarmed has not exercised cool presence of mind, and thereby find protection from responsibility for damages resulting from the alarm.”
Here, the appellee was placed in a position of danger by the act of the appellant’s servants in backing a freight train against the car which he was loading, while he was so engaged in loading it; and, inasmuch as it may be doubtful whether the proper course to be pursued by the appellee was to jump from the chute to the ground, or to step upon the car, the question, whether he was in the exercise of proper care and caution for his own safety, was one which was proper, under the circumstances, to be submitted to the jury. It was so submitted by the first instruction, given for the appellee.
It cannot be said that the act of the appellee in stepping upon the car was neglig'ence per se, or negligence as matter of law. The question of contributory negligence is not one of law for the court, unless the facts are undisputed, and only one inference regarding the care of the plaintiff can be drawn from them; it is a question for the jury when the facts are disputed, or more than one inference can be drawn from them as to the care, or want of care, of the plaintiff. (4 Am. & Eng. Ency. of Law, p. 94). Negligence is ordinarily a question of fact; and it is certainly a question of fact where the evidence as to the material facts is conflicting, or where, in a conceded state of facts, a different conclusion would reasonably be reached by different minds. It only becomes a question of law where, from facts admitted or conclusively proven, “there is no reasonable chance of different reasonable minds reaching different conclusions.” (Cicero and Proviso Street Railway Co. v. Meixner, 160 Ill. 320; Wabash Railway Co. v. Brown, 152 id. 484; Chicago and Eastern Illinois Railroad Co.v. O’Connor, 119 id. 586). ' We cannot say, that, under the circumstances here detailed, the conclusion of negligence results necessarily from the statement of the facts. We are, therefore, of the opinion that the trial court did not err in not holding that the facts established negligence as a matter of law.
In addition to what has been said, it may be remarked that there was no error in giving the first instruction, which was given for the appellee, in view of the fact that similar instructions were asked by the appellant and were given for it by the court, as may be seen by reference to the instructions given by the court for the defendant as set out in the statement of facts preceding this opinion. The defendant has no right to complain of error in an instruction given for the plaintiff, when like error appears in an instruction given at his own request. (Consolidated Coal Co. v. Haenni, 146 Ill. 614).
We see no reason for the reversal of the judgment on account of the second instruction given for appellee, which requires the jury to believe from a preponderance of the evidence, that the plaintiff has established every material allegation of his declaration. The Appellate Court correctly says of it, that, if “it was general, the instruction that immediately followed it was full and specific, and more than covered the point embraced in the second.”
The court committed no error in modifying instructions 6 and 7 asked by the appellant, by adding thereto the requirement of knowledge on the part of the plaintiff that he was in a position which was perilous and fraught with danger to his own safety. Where a person exposes himself to injury, with knowledge of the danger to which he is so exposed, and, as the result of such exposure, receives injury, his knowledge of the danger will presumptively establish contributory negligence. But this presumption is not conclusive; it is disputable, and may be rebutted by evidence as to the exercise of ordinary care under the circumstances of the particular case. (Village of Clayton v. Brooks, 150 Ill. 97). Knowledge of danger does not always constitute contributory negligence, but surely where one has no knowledge of the danger, it can not be said that he is guilty of contributory negligence.
Instruction No. 6, as asked by the appellant, and before it was modified by the court, omitted from the consideration of the jury the question, whether the rate of speed, with which the approaching engine was coming, was such as to awaken reasonable apprehension of peril. The appellee did not know positively, that the motion of the approaching train would not be so slackened before the train reached the loaded car, as not to cause a violent .concussion.
The eighth instruction asked by the defendant and refused by the court, assumes that appellee made no effort to avoid the alleged injury for fear of the escape of his hogs. The ninth instruction, asked by the appellant and refused by the court, required the jury to find that the appellant was guilty of gross negligence, whereas appellant was liable for the injury, if it was guilty of such negligence as caused the injury, whether it was gross or not. The tenth instruction, asked by the defendant and refused by the court, was erroneous as invading the province of the jury by withdrawing from them the consideration of the circumstances surrounding appellee at the time of the accident. It was for the jury to say, whether or not the circumstances were such that the appellee should have remained on the stock chute or jumped therefrom, instead of entering the car.
Second—Appellant complains that the court erred in refusing to admit evidence offered by it upon the trial. The evidence, so offered and excluded by the court, was á contract between the appellant company and the appellee to transport ninety-six hogs to Chicago at eight cents per one hundred pounds. The contract specified, that the car had been examined and accepted by the shipper as in proper condition, and was in charge of the shipper and his agents; that the shipper assumed the duty of loading, unloading, feeding and watering his hogs at his own expense and risk; that the company should not be liable for any injury the animals might do one another or themselves, or for any damage whatever not resulting from the gross negligence of the company; that the owner was to feed, take care of and water the stock at his own risk; and that the owner was to have free transportation, and to ride in the caboose, at his own risk from any cause whatever, except the gross carelessness of the company.
Whether the court erred or not in excluding this contract, we are unable to see how the appellant company was injured thereby. No recovery is sought upon the ground that the car, which was loaded with appellee’s hogs, was defective in any respect; °nor was any recovery sought upon the ground of any alleged injury to the hogs, or any loss of any of them. So far as the contract exempted the company from liability for any injury to the appellee, except such injury as mig'ht be the result of gross carelessness on the part of the company, the contract was void. A person, who travels with the consent of a railroad company on a freight train in charge of stock or goods carried by the company for him, is a passenger; and a railway company cannot exempt itself from the exercise of care and diligence in conveying its passengers, and cannot, by contract, limit its liability for injuries to passengers to gross negligence alone. The company is responsible for any degree of negligence, which is sufficient to cause the injury, whether the negligence be called gross or ordinary. (Illinois Central Railroad Co. v. Beebe, 174 Ill. 13). In this case, the issue was whether appellee was exercising due care under the circumstances as shown by the evidence, and whether the appellant company was exercising such caution, at the time, as a prudent person should observe for the safety of another under such circumstances. The introduction of the contract in question could not have had the effect of throwing any light upon the issue thus made; and, therefore, the refusal to admit it in evidence did the appellant no harm.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
Mr. Justice Phillips, dissenting.