Mr. Presiding Justice Brown
delivered the opinion of the court.
Contentions ■ of the defendant which lie at the foundation of its complaint against this judgment are, that the declaration neither before nor after its amendment on December 30, 1904, stated a good cause of action, and that even if it did after said amendment sufficiently state a cause of action to sustain a judgment, this was the result of that amendment, made more than two years after the accident. For these reasons, it is insisted that the trial court erred in refusing to arrest judgment after verdict, and that at all events it erred in sustaining’ the demurrer filed by the plaintiff to the plea of the Statute of Limitations. Much refinement has been introduced by counsel for each party into the discussion of these contentions, but the question involved does not seem to demand at our hands that we follow in detail the arguments respectively elaborated.
After the declaration was amended on October 6, 1904, it alleged in its first count in effect that the plaintiff (who was not a servant of the defendant) was rightfully and lawfully and in the exercise of due care on a railroad track over which the defendant was operating a locomotive, that he was passing from an engine on which he was employed to the office of the railway company that employed him to get a drink of water, and that the defendant ran the locomotive it was operating along said track carelessly, failing, as it did so, to ring a bell, as it was required by law to do, and in consequence of its said failure to perform its legal duty in ringing said bell, he, the plaintiff, did not know the locomotive was approaching him, and it ran over him and injured him.
It is unnecessary for us to decide whether the special demurrer was properly • sustained to this count. It stated a good cause of action and would have been good after verdict at least, and this is sufficient for the purposes of our decision, for the declaration as it was further amended after two years had expired added further detail to, but omitted nothing from the statement above set out. It merely added the allegations that before leaving the engine" to get water, he had been discharging his duties as fireman, and that to get the water it was necessary for him to cross the track, and that he had the consent and permission of his employer to do so.
If these were necessary additions to make the declaration good as against a special demurrer, as the court below evidently thought, they were at best only the required supplement to a defective statement of the cause of action already made. They were clearly not the statement of any new or different cause of action. Therefore, we do not think the court erred ■ either in refusing to arrest judgment or in sustaining the demurrer to the plea of the Statute of Limitations.
It inheres in our view that the declaration states a good cause of action, that the elaborate discussion by counsel of the precise relation between the plaintiff and defendant, and of the numerous cases cited by each party, does not call for analysis from us.
We have carefully considered all the authorities cited, however, and find nothing inconsistent with the mew that the plaintiff, under the circumstances set forth in the declaration, was not a trespasser, but a person rightfully and lawfully on the tracks of his employer—not indeed engaged at the moment in the performance of a duty necessarily required of him by that employer, but still acting within the general scope and line of his employment. Such, we think, is the reasonable doctrine laid down by our Supreme Court in such cases as Heldmaier v. Cobbs, 195 Ill. 172, and Spry Lumber Co. v. Duggan, 182 Ill. 218, and by this court in C. T. R. R. Co. v. O’Donnell, Admr., 114 Ill. App. 345. It is also well fortified by authority from other jurisdictions.
But in any event and irrespective of what might have been the duties of his employer to the plaintiff at the time of the accident, we think it plain that the defendant, who was not his employer, was bound, under the circumstances, in running its locomotive over the tracks of his employer, to exercise due care not to injure him.
The questions, therefore, to be decided, are those present in every personal injury case: Was there contributory negligence on the part of the plaintiff? And, if not, did the defendant’s negligence cause the injury?
The appellant argues that, having regard to the evidence, the first of these questions must be answered in the affirmative, and the second in the negative, and that either answer by itself being sufficient to dispose of the plaintiff’s claim, the cause should have been taken from the jury by peremptory instruction, or, failing to do so, the court should at least have granted a new trial on the ground that the verdict was against the weight of the evidence.
We do not agree with these contentions. It seems to us that the questions were for the jury under proper instructions. On the question of the plaintiff’s negligence, it may truly be said that it was attended with danger at the best to step off a locomotive and cross a parallel track on a dark night where there was no public crossing and no stationary light. Some men, unusually prudent perhaps, would have suffered from thirst a great while before doing it. But we cannot say, as a matter of law, that it was in and by itself negligence, nor under the authorities can we hold even that the plaintiff’s riding on the step of the engine for the last fifty feet before he jumped off, without looking to the west for approaching engines, was necessarily and as a matter of law negligent. C. & A. R. R. Co. v. Hansen, 166 Ill. 623; C. & A. R. R. Co. v. LewandowHanson, 166 Ill. 623; C. & A. R. R. Co. v. Lewandowski, 190 Ill. 301; Lake Shore & M. S. Ry. Co. v. Johnson, 135 Ill. 641.
There was evidence that the night was dark through smoke, that the plaintiff looked both west and east before and after he got onto thfe step of the engine, and that there were ties on the ground between the tracks, the presence of which compelled his attention at the moment of stepping off in order that he might drop off on a clear space. Besides this there was- evidence tending to show that the headlight at the rear of the tank on the backing Lake Shore engine which ran onto him was dim and smoked, and that no bell was ringing—matters which, if they were true, might affect the question of the negligence of the plaintiff in crossing the track when he did, as well as the question of the negligence of the defendant. The plaintiff had a right to expect that the engine bell would be ringing and the headlight properly burning. Chicago City Railway Co. v. Fennimore, 199 Ill. 9-17.
Again, there was evidence that at this particular time engines were infrequently upon this track, and that plaintiff’s fellows in the crew of the engine and who were in a better position to see the approach of the engine, did not do so until it was practically abreast of them.
On the whole we cannot say, to quote the language of the Supreme Court in Lake Shore & Michigan Southern Ry. Co. v. Johnson, 135 Ill. 641, “That” (contributory) “negligence has been established as a matter of law,” because “the conduct of the injured party has been so clearly and palpably negligent that all reasonable minds would so pronounce it without hesitation or dissent.
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Mr. Presiding Justice Brown
delivered the opinion of the court.
Contentions ■ of the defendant which lie at the foundation of its complaint against this judgment are, that the declaration neither before nor after its amendment on December 30, 1904, stated a good cause of action, and that even if it did after said amendment sufficiently state a cause of action to sustain a judgment, this was the result of that amendment, made more than two years after the accident. For these reasons, it is insisted that the trial court erred in refusing to arrest judgment after verdict, and that at all events it erred in sustaining’ the demurrer filed by the plaintiff to the plea of the Statute of Limitations. Much refinement has been introduced by counsel for each party into the discussion of these contentions, but the question involved does not seem to demand at our hands that we follow in detail the arguments respectively elaborated.
After the declaration was amended on October 6, 1904, it alleged in its first count in effect that the plaintiff (who was not a servant of the defendant) was rightfully and lawfully and in the exercise of due care on a railroad track over which the defendant was operating a locomotive, that he was passing from an engine on which he was employed to the office of the railway company that employed him to get a drink of water, and that the defendant ran the locomotive it was operating along said track carelessly, failing, as it did so, to ring a bell, as it was required by law to do, and in consequence of its said failure to perform its legal duty in ringing said bell, he, the plaintiff, did not know the locomotive was approaching him, and it ran over him and injured him.
It is unnecessary for us to decide whether the special demurrer was properly • sustained to this count. It stated a good cause of action and would have been good after verdict at least, and this is sufficient for the purposes of our decision, for the declaration as it was further amended after two years had expired added further detail to, but omitted nothing from the statement above set out. It merely added the allegations that before leaving the engine" to get water, he had been discharging his duties as fireman, and that to get the water it was necessary for him to cross the track, and that he had the consent and permission of his employer to do so.
If these were necessary additions to make the declaration good as against a special demurrer, as the court below evidently thought, they were at best only the required supplement to a defective statement of the cause of action already made. They were clearly not the statement of any new or different cause of action. Therefore, we do not think the court erred ■ either in refusing to arrest judgment or in sustaining the demurrer to the plea of the Statute of Limitations.
It inheres in our view that the declaration states a good cause of action, that the elaborate discussion by counsel of the precise relation between the plaintiff and defendant, and of the numerous cases cited by each party, does not call for analysis from us.
We have carefully considered all the authorities cited, however, and find nothing inconsistent with the mew that the plaintiff, under the circumstances set forth in the declaration, was not a trespasser, but a person rightfully and lawfully on the tracks of his employer—not indeed engaged at the moment in the performance of a duty necessarily required of him by that employer, but still acting within the general scope and line of his employment. Such, we think, is the reasonable doctrine laid down by our Supreme Court in such cases as Heldmaier v. Cobbs, 195 Ill. 172, and Spry Lumber Co. v. Duggan, 182 Ill. 218, and by this court in C. T. R. R. Co. v. O’Donnell, Admr., 114 Ill. App. 345. It is also well fortified by authority from other jurisdictions.
But in any event and irrespective of what might have been the duties of his employer to the plaintiff at the time of the accident, we think it plain that the defendant, who was not his employer, was bound, under the circumstances, in running its locomotive over the tracks of his employer, to exercise due care not to injure him.
The questions, therefore, to be decided, are those present in every personal injury case: Was there contributory negligence on the part of the plaintiff? And, if not, did the defendant’s negligence cause the injury?
The appellant argues that, having regard to the evidence, the first of these questions must be answered in the affirmative, and the second in the negative, and that either answer by itself being sufficient to dispose of the plaintiff’s claim, the cause should have been taken from the jury by peremptory instruction, or, failing to do so, the court should at least have granted a new trial on the ground that the verdict was against the weight of the evidence.
We do not agree with these contentions. It seems to us that the questions were for the jury under proper instructions. On the question of the plaintiff’s negligence, it may truly be said that it was attended with danger at the best to step off a locomotive and cross a parallel track on a dark night where there was no public crossing and no stationary light. Some men, unusually prudent perhaps, would have suffered from thirst a great while before doing it. But we cannot say, as a matter of law, that it was in and by itself negligence, nor under the authorities can we hold even that the plaintiff’s riding on the step of the engine for the last fifty feet before he jumped off, without looking to the west for approaching engines, was necessarily and as a matter of law negligent. C. & A. R. R. Co. v. Hansen, 166 Ill. 623; C. & A. R. R. Co. v. LewandowHanson, 166 Ill. 623; C. & A. R. R. Co. v. Lewandowski, 190 Ill. 301; Lake Shore & M. S. Ry. Co. v. Johnson, 135 Ill. 641.
There was evidence that the night was dark through smoke, that the plaintiff looked both west and east before and after he got onto thfe step of the engine, and that there were ties on the ground between the tracks, the presence of which compelled his attention at the moment of stepping off in order that he might drop off on a clear space. Besides this there was- evidence tending to show that the headlight at the rear of the tank on the backing Lake Shore engine which ran onto him was dim and smoked, and that no bell was ringing—matters which, if they were true, might affect the question of the negligence of the plaintiff in crossing the track when he did, as well as the question of the negligence of the defendant. The plaintiff had a right to expect that the engine bell would be ringing and the headlight properly burning. Chicago City Railway Co. v. Fennimore, 199 Ill. 9-17.
Again, there was evidence that at this particular time engines were infrequently upon this track, and that plaintiff’s fellows in the crew of the engine and who were in a better position to see the approach of the engine, did not do so until it was practically abreast of them.
On the whole we cannot say, to quote the language of the Supreme Court in Lake Shore & Michigan Southern Ry. Co. v. Johnson, 135 Ill. 641, “That” (contributory) “negligence has been established as a matter of law,” because “the conduct of the injured party has been so clearly and palpably negligent that all reasonable minds would so pronounce it without hesitation or dissent. ’ ’ To quote further from the same opinion—“Unless the negligence of the plaintiff is proven by such conclusive evidence that there can be • no difference of opinion as to its existence upon a mere statement of the facts, the jury must pass upon it. ’ ’
We do not think that on this question of contributory negligence, which is perhaps the closest in the case, the court erred either in refusing to peremptorily instruct the jury or in refusing a new trial. By instructions 5, 6, 7 and 8, given at defendant’s instance, the jury were accurately instructed as to the law affecting the question, and we think their decision of it should be regarded as final.
The question of the negligence of the defendant through its servants, for whom it was responsible, was still more clearly a fair matter for the jury.
There was evidence tending to show that this “wild” engine on a dark night, through a smoky district, was backing down where parallel tracks were numerous and employes of the Junction Bailway likely to be, at a speed of fifteen miles an hour; 'that its bell was not ringing as required by ordinance, and that the headlight on the approaching end of the engine was burning dimly.
If the jury justifiably believed from the evidence this state of things to exist, then we think their verdict was justified. The evidence was certainly contradictory, and there was testimony tending to disprove all these allegations; but it was a fair question for the jury to pass on, under proper instructions, whether in the conduct of defendant’s servants with the engine there was negligence.
The Supreme Court said in Wabash Railway Co. v. Brown, 152 Ill. 484, and repeated in Pittsburg, Ft. Wayne & Chicago Ry. Co. v. Callaghan, 157 Ill. 412, “Negligence is ordinarily a question of fact. Where the evidence on material facts is conflicting, or where on undisputed facts fair minded men of ordinary intelligence may differ as to the inferences to be drawn, or where on even a conceded state of facts a different conclusion would reasonably be reached by different minds, 'in all such cases negligence is a question of fact. ’ ’
We do not think in this case the evidence of negligence on the defendant’s part was so lacking as to warrant the court in taking the case from the jury, or that the verdict was so clearly against the weight of the evidence as to justify the trial court or this court in setting it aside. '
The only remaining question in the case is the one of instructions. The complaint of appellant is of the refusal of certain instructions tendered by it and ■ marked 11,12,13,14 and 15. We do not think that the court erred in refusing them. We think that as applied to the facts of this case they could not have been properly given, unless the_court meant to rule that the plaintiff was not entitled to due care from the defendant in the management of its engine, while crossing the track on which he was struck, unless he was at that moment doing something required of him by his employer. The giving of these instructions would certainly have been likely to lead the jury to think this was the rule of law. As we have before indicated, we do not think this is true. The instructions that were given seem to us fairly to have left the true questions at issue for the jury to decide.
The judgment of the Superior Court is affirmed.
Affirmed.