The opinion
Dunn, J., Cooke, C. J., and Cartwright, J., dissenting:
There was a conflict in the evidence as to whether the car was standing still or in motion when Flanley attempted to get on, and, although we must regard all questions of fact as determined against the plaintiff in error, it was essential to a fair trial that instructions clearly stating to the jury the issue to be tried should have been given if requested. That issue was formed by the defendant’s general denial of the two counts of the declaration, one of which stated that while the car was standing still and the deceased, in the exercise of due care, was boarding it, the defendant started -the car forward suddenly, violently and without warning; and the other, that while the car was running very slowly and the deceased, in the exercise of due care, was boarding it, the defendant suddenly, violently and without warning increased its speed. That no negligence was charged other than the sudden starting or increasing of the speed of the car is conceded. It was further alleged in each count that • the deceased was brought into violent contact with a telegraph or telephone pole which was standing alongside of the railway and was thereby thrown from the car. That this allegation was not a charge of negligence or ground of recovery is also conceded. It is said in the majority opinion that the refused instruction correctly stated this proposition. The instruction was therefore a correct proposition of law applicable to the pleadings and evidence in the case. Its refusal can only be justified for the reason that such refusal could not have been prejudicial to the defendant, and that is the reason given. Both counts of the declaration alleged the proximity of the pole and the track, and it was apparent that the accident would not have happened if the pole had not been where it was. The evidence as to the sudden starting of the car or increasing of its speed was conflicting, but there was no doubt that, even though the jury might have found in favor of the defendant on this question, the deceased was brought in contact with the pole and thereby thrown from the car and injured. In this state of the case it was important that the jury should know whether or not the fact of the pole being so near the railway track could be the basis of their verdict. By the refused instruction they would have been told they could not regard such fact as a basis for recovery. The proximity of the pole was alleged in the declaration and proved by the evidence, and the jury should have been told that it was not alleged as a ground of recovery.
No instruction was given informing the jury what the issue was which they were to try, what the material allegations of the declaration or of either count were, or what the plaintiff was required to prove to entitle him to a verdict. The jury were not even referred to the declaration to ascertain the issue. In two of the three negative instructions mentioned in the majority opinion the jury were told that there could be no recovery if the defendant was not guilty of the particular negligence charged, or, even if it was guilty of the particular negligence charged, if deceased was himself guilty of contributory negligence. Neither of these instructions mentioned the declaration, but both left the jury to find the negligence charged, in the evidence, the arguments of counsel or elsewhere. The third instruction referred to in the majority opinion stated that there could be no recovery if the deceased received the alleged injury, not from any cause stated in the declaration, but from any other cause whatever. This is the only instruction referring to the declaration, and the declaration stated that the deceased was brought into contact with the pole and thereby thrown from the car to the trade and was run over by the car and injured so that he died. The evidence left no doubt that the deceased, by reason of being brought in contact with the pole, was thrown from the car and injured. Was this a cause stated in the declaration? The jurors were left to answer this question unaided by any instruction from the court. The plaintiff in error was entitled to a specific instruction that it was not. Though the jury were instructed, in a general way, that the plaintiff could not recover if the deceased was iñjured, not from any cause stated in the declaration but from any other cause whatever, or if the defendant was not guilty of the particular negligence charged, this left the jury to their own interpretation of the cause stated or the negligence charged, instead of instructing them precisely what was the cause stated or the negligence charged. Even though the jury possessed the qualifications prescribed by the statute, it cannot be assumed that they would therefore know what were the material allegations of the declaration, that the sudden starting of the car or increasing of its speed was the only negligence charged, and that the proximity of the pole to the track was not claimed to be either negligence or the cause of the injury. It is erroneous to instruct the jury to find the issues for the plaintiff if he has established, by a pre- , ponderance of the evidence, the material allegations of the declaration, for the jury might conclude that some allegation essential in law was not material, and averments which would be clear to a lawyer may often be obscure or unintelligible to jurors. (Baker & Reddick v. Summers, 201 Ill. 52 .) In this case it is stated that the jury could not have believed that the defendant in error was charging the plaintiff in error with any liability on account of the location of the pole, yet the able and' experienced counsel of the defendant in error, in two arguments of this cause, has earnestly sought to convince us that the additional counts do allege, as stated in his brief, that the proximity of the pole was a concurring cause of the injury, and, in fact, was a ground of recovery. If eminent counsel is sufficiently convinced of the justice of this construction seriously to present it in argument to this court, we do not feel justified in holding that a jury, though composed of men of sound judgment, well informed and who understand the English language, would certainly know that his construction of his own pleading was wrofig and that it did not charge what he said it charged. If they did not know this then the instruction was necessary to inform them, for we are all agreed that the proximity of the pole was not alleged as a ground of recovery.
In our judgment the refusal of the instruction was prejudicial error.