Mr. Justice Waterman
delivered the opinion of the Court.
We do not understand counsel for appellant to dissent from the position of appellee, that in order to recover for injuries occasioned by negligence it must be alleged and proved that the party injured was at the time he was injured observing due or ordinary care for his personal safety.
What they do insist on is that the question of whether the party injured was at the time observing ordinary care for his personal safety, must always be submitted to a jury, and that there can be no conduct so reckless and indifferent to obvious danger that a court may pronounce the same to be clearly a want of ordinary care, and therefore refuse to submit the cause to a jury.
We understand the rule' to be that whether a party was in the exercise of ordinary care is a question of fact, to be determined by the jury, and that it is only where the facts are such that a reasonable mind can draw from them but one conclusion, that negligence may be inferred as a matter of law; that where reasonable minds might differ, negligence is a question of fact. L. S. & M. S. Ry. Co. v. Johnson, 135 Ill. 641; I. C. R. R. Co. v. Nowicki, 46 Ill. App. 566; Chicago, St. Paul & Kansas City Ry. Co. v. Anderson, 47 Ill. App. 91; Lincoln Ice Co. v. Johnson, 37 Ill. App. 453; Chicago & Eastern Illinois Ry. Co. v. Connor, 119 Ill. 586; Chicago City Ry. Co. v. Robinson, 127 Ill. 12; Terre Haute & Ind. Ry. Co. v. Voelker, 129 Ill. 540; Abend v. Railroad Co., 111 Ill. 202; Simmons v. Ry. Co., 110 Ill. 340; Breeze v. Powers, 80 Mich. 172-178; Cooley on Torts, 670-804 of 2d Ed.; Beach on Contributory Negligence, 454; Lake Shore Foundry Co. v. Rakowski, 54 Ill. App. 213.
The burden of showing that he was in the exercise of ordinary care is upon the party seeking to recover for a personal injury occasioned by the alleged negligence of another. Calumet Iron & Steel Co. v. Martin, 115 Ill. 358-370.
A' bare scintilla of evidence is not enough to entitle a party to recover. Simmons v. Railroad Co., 110 Ill. 340-346; Bartelott v. International Bank, 119 Ill. 259-292; Phillips v. Dickinson, 85 Ill. 11-15.
While questions of negligence or of contributory negligence are ordinarily questions of fact to be passed upon by a jury, yet, when the undisputed evidence is so conclusive that the court would be compelled to set aside a verdict in opposition to it, the court may withdraw the case from the consideration of the jury, and direct a verdict. Railroad Co. v. Houston, 95 U. S. 697; Schofield v. Railway Co., 114 U. S. 615; Railroad Co. v. Converse, 139 U. S. 469; Aerkfetz v. Humphreys, 145 U. S. 418.
In the present case, it appears that appellant had for eighteen months continuously worked at the place, and in the doing of the very thing at which he was engaged when injured, in October, 1891; he was not only entirely familiar with the way in which the work of pushing up and removing these cars was done, but he had only a few months previous been injured, because an engine pushed a car up the incline, not easily, but so that it bumped. He also must have known that it is practically impossible for a locomotive to always push a train of heavy cars up an incline with such steady gentleness that they will not come with a force dangerous to a human limb if it be between the cars, and an object against which they are pushed; the daily observation of every one who witnesses the coupling of cars, even upon a level, teaches this.
Notwithstanding this, he stood with his foot upon the track upon which the cars were being pushed; stood so that the car holding the ladle upon which he was working, being pushed, as his witness, the companion working with him, says, half an inch or an inch, his foot was caught under the wheel.
There is not a scintilla of evidence to show that there was any necessity for his placing his foot on the rail; his companion, doing the same work that appellant was, remained uninjured. Appellant was injured because his foot was on the rail; this, no reasonable, unbiased mind can doubt. His complaint is that no warning was given of the approach of the cars; he does not show that it was customary to give or that he had any reason to expect warning, and it clearly appears but that for his want of ordinary care he would not have been injured.
Appellant’s counsel, in the reply brief by them filed, say that appellant flatly contradicts Polarck’s statement that appellant had his foot on the rail. We have searched the record in vain to find such contradiction. Appellant did testify as follows:
“Mr. Brandt: Were you between the two rails of the track that this ladle was on? A. Tes.”.
This is very far from being, as counsel assert, a contradiction of the statement of plaintiff’s witness, Polarck, that appellant had his foot on the rail. On the contrary, it is entirely consistent with Polarck’s statement.
Undoubtedly, if there were any dispute in the evidence about this, on a motion to instruct the jury to find for the defendant, the- doubt should be resolved in favor of the plaintiff.
The plaintiff, after Polarck had testified, was again called to the witness stand but failed to deny Polarck’s statement, that he, appellant, had his foot on the rail.
Photographs of appellant’s person, showing the scars thereon, etc., were used on the trial; these photographs are not included in the record, but there is a description given by appellant of the injury to, and scar upon his right foot, and from this it is manifest that it was cut while he was standing with it upon the rail.
Appellant testified:
“ Q. Now then, tell how you were hurt; tell what the hurts were; I don’t mean the manner. A. When I was struck I was dazed and I don’t know what was the matter with me, and my partner dragged me from the track over to the scales, and then they notified the foreman Brady. * * -x-
Q. Whereabouts was the wound ? How far did it extend? A. It was on the foot; right on top of the foot.
Q. Which foot ? A. That was on the right foot.
Q. How far did it go back on the foot ? A. The foot was sore up to the ankle, and it hurt me from about the knee and about the thigh; I struck my hip.” * * *
“ Mr. Brandt: I ask you this question, if this scar which appears—I want the jury to see that scar, the scar extending along the top of the foot from about the division between the second toe from the little one and running up to the ankle; was that scar on there or anything of the kind before the ladle ran on you in 1891 ? A. No, I didn’t have any scar or mark before.”
Upon cross-examination appellant testified •.
“ Mr.
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Mr. Justice Waterman
delivered the opinion of the Court.
We do not understand counsel for appellant to dissent from the position of appellee, that in order to recover for injuries occasioned by negligence it must be alleged and proved that the party injured was at the time he was injured observing due or ordinary care for his personal safety.
What they do insist on is that the question of whether the party injured was at the time observing ordinary care for his personal safety, must always be submitted to a jury, and that there can be no conduct so reckless and indifferent to obvious danger that a court may pronounce the same to be clearly a want of ordinary care, and therefore refuse to submit the cause to a jury.
We understand the rule' to be that whether a party was in the exercise of ordinary care is a question of fact, to be determined by the jury, and that it is only where the facts are such that a reasonable mind can draw from them but one conclusion, that negligence may be inferred as a matter of law; that where reasonable minds might differ, negligence is a question of fact. L. S. & M. S. Ry. Co. v. Johnson, 135 Ill. 641; I. C. R. R. Co. v. Nowicki, 46 Ill. App. 566; Chicago, St. Paul & Kansas City Ry. Co. v. Anderson, 47 Ill. App. 91; Lincoln Ice Co. v. Johnson, 37 Ill. App. 453; Chicago & Eastern Illinois Ry. Co. v. Connor, 119 Ill. 586; Chicago City Ry. Co. v. Robinson, 127 Ill. 12; Terre Haute & Ind. Ry. Co. v. Voelker, 129 Ill. 540; Abend v. Railroad Co., 111 Ill. 202; Simmons v. Ry. Co., 110 Ill. 340; Breeze v. Powers, 80 Mich. 172-178; Cooley on Torts, 670-804 of 2d Ed.; Beach on Contributory Negligence, 454; Lake Shore Foundry Co. v. Rakowski, 54 Ill. App. 213.
The burden of showing that he was in the exercise of ordinary care is upon the party seeking to recover for a personal injury occasioned by the alleged negligence of another. Calumet Iron & Steel Co. v. Martin, 115 Ill. 358-370.
A' bare scintilla of evidence is not enough to entitle a party to recover. Simmons v. Railroad Co., 110 Ill. 340-346; Bartelott v. International Bank, 119 Ill. 259-292; Phillips v. Dickinson, 85 Ill. 11-15.
While questions of negligence or of contributory negligence are ordinarily questions of fact to be passed upon by a jury, yet, when the undisputed evidence is so conclusive that the court would be compelled to set aside a verdict in opposition to it, the court may withdraw the case from the consideration of the jury, and direct a verdict. Railroad Co. v. Houston, 95 U. S. 697; Schofield v. Railway Co., 114 U. S. 615; Railroad Co. v. Converse, 139 U. S. 469; Aerkfetz v. Humphreys, 145 U. S. 418.
In the present case, it appears that appellant had for eighteen months continuously worked at the place, and in the doing of the very thing at which he was engaged when injured, in October, 1891; he was not only entirely familiar with the way in which the work of pushing up and removing these cars was done, but he had only a few months previous been injured, because an engine pushed a car up the incline, not easily, but so that it bumped. He also must have known that it is practically impossible for a locomotive to always push a train of heavy cars up an incline with such steady gentleness that they will not come with a force dangerous to a human limb if it be between the cars, and an object against which they are pushed; the daily observation of every one who witnesses the coupling of cars, even upon a level, teaches this.
Notwithstanding this, he stood with his foot upon the track upon which the cars were being pushed; stood so that the car holding the ladle upon which he was working, being pushed, as his witness, the companion working with him, says, half an inch or an inch, his foot was caught under the wheel.
There is not a scintilla of evidence to show that there was any necessity for his placing his foot on the rail; his companion, doing the same work that appellant was, remained uninjured. Appellant was injured because his foot was on the rail; this, no reasonable, unbiased mind can doubt. His complaint is that no warning was given of the approach of the cars; he does not show that it was customary to give or that he had any reason to expect warning, and it clearly appears but that for his want of ordinary care he would not have been injured.
Appellant’s counsel, in the reply brief by them filed, say that appellant flatly contradicts Polarck’s statement that appellant had his foot on the rail. We have searched the record in vain to find such contradiction. Appellant did testify as follows:
“Mr. Brandt: Were you between the two rails of the track that this ladle was on? A. Tes.”.
This is very far from being, as counsel assert, a contradiction of the statement of plaintiff’s witness, Polarck, that appellant had his foot on the rail. On the contrary, it is entirely consistent with Polarck’s statement.
Undoubtedly, if there were any dispute in the evidence about this, on a motion to instruct the jury to find for the defendant, the- doubt should be resolved in favor of the plaintiff.
The plaintiff, after Polarck had testified, was again called to the witness stand but failed to deny Polarck’s statement, that he, appellant, had his foot on the rail.
Photographs of appellant’s person, showing the scars thereon, etc., were used on the trial; these photographs are not included in the record, but there is a description given by appellant of the injury to, and scar upon his right foot, and from this it is manifest that it was cut while he was standing with it upon the rail.
Appellant testified:
“ Q. Now then, tell how you were hurt; tell what the hurts were; I don’t mean the manner. A. When I was struck I was dazed and I don’t know what was the matter with me, and my partner dragged me from the track over to the scales, and then they notified the foreman Brady. * * -x-
Q. Whereabouts was the wound ? How far did it extend? A. It was on the foot; right on top of the foot.
Q. Which foot ? A. That was on the right foot.
Q. How far did it go back on the foot ? A. The foot was sore up to the ankle, and it hurt me from about the knee and about the thigh; I struck my hip.” * * *
“ Mr. Brandt: I ask you this question, if this scar which appears—I want the jury to see that scar, the scar extending along the top of the foot from about the division between the second toe from the little one and running up to the ankle; was that scar on there or anything of the kind before the ladle ran on you in 1891 ? A. No, I didn’t have any scar or mark before.”
Upon cross-examination appellant testified •.
“ Mr. Prentice: Ton said at the time of the accident in October your foot was under the wheel when you fell. Do you mean that the wheel went over your foot completely?
A. No, the wheel stopped on my foot; I was crying aloud, and they stopped it.
Q. It just pushed your foot along the track a little way, was that it? A. No, I don’t know.”
If appellant was exercising ordinary care and appellee was guilty of negligence in moving the ladle, and appellant was injured in consequence thereof, then, as counsel for appellant urge, it is immaterial whether the ladle was moved an inch, a yard or a mile.” There is no direct evidence, save that of Polarck, as to the distance the ladle was moved, while there is evidence, undisputable, that appellant was not in the exercise of ordinary care.
As to the accident in May or July, 1891, this suit to recover for the accident of October, 1891, was begun December 14, 1891; a declaration based upon that accident only, was filed January 6, 1892; the declaration was, on the 10th day of March, 1892, amended by the filing of additional counts, one of which was based upon the accident of July, 1891.
The case upon the accident by burning, seems to have been fairly tried and submitted, and we see no sufficient reason for interfering with the conclusion arrived at by the court and jury.
Appellant complains that the court refused to instruct or tell the jury that the jdaintiff had not asked for any instructions. We do not think that a court should be required to do this.
Instructions should be given to the jury, not as the plaintiff’s or defendant’s, or as requested by either, but as given by the court. .
The judgment of the Superior Court is affirmed.
Mb. Justice Gaby dissents.