Smith v. E. St. L. R'y Co., 169 Ill. App. 132.

are all matters left to the jury to be determined from the facts and circumstances, and we think these instructions are sustained by the case of The North Chicago Street R. R. Co. v. Rodert, 203 Ill. 413, and were proper.

As to the instruction of appellant that was refused, we do not believe that the objection to the refusal of it can be sustained, for the reason that the proposition contained in this instruction was included in the instruction given by the court upon behalf of appellant. It is said this instruction should have been given because it directed the attention of the jury to the particular negligence charged in the declaration, and no other instruction did this. It will be observed that the instruction merely advised the jury that he must prove the particular negligence he has alleged in his declaration, and another instruction given on behalf of appellant contains the proposition, "If you further believe from the evidence that the plaintiff has not proven by a preponderance of the evidence that he was injured by the negligence of the defendant as charged in the declaration, then the plaintiff cannot recover and your verdict must be for the defendant." We do not see but what the proposition contended for in the refused instruction is included in the instruction as given. It is true that in the refused instruction the words "particular negligence he has alleged in the declaration" are used but we do not believe there can be any difference between that, at least in substance, and saying, "the negligence of the defendant as charged in the declaration;" they both refer to the charge in the declaration.

We are unable to say that the court erred in the giving and refusing of the instructions complained of. We have carefully considered the evidence in this case, and it being in its character, especially many features of it, proven or disproven by circumstantial evidence, we think, the circumstances would warrant the

Martini v. Donk Bros. Coal & Coke Co., 169 Ill. App. 139.

jury in finding that the deceased was injured by the defendant's car and as a result of the negligence of its servants. The evidence was of that character that it was purely a question for the jury to determine and we cannot say but what the verdict is sustained by the evidence, and the judgment of the court should be affirmed.

Judgment affirmed.

Joseph Martini, Appellee, v. Donk Brothers Coal & Coke Company, Appellant.

1. VERDICTS-supported by plaintiff's testimony alone. Held, that a verdict will not necessarily be set aside although supported only by the testimony of the plaintiff contradicted by credible witnesses and other corroborative evidence.

The re

2. INSTRUCTIONS-when refusal of correct will not reverse. fusal of a correct instruction will not reverse if its contents are substantially contained in another instruction given.

3. INSTRUCTIONS-ignoring material elements. An instruction which concludes with a direction is properly refused if it ignores material elements or issues in the cause.

4. INSTRUCTIONS-invading province of jury. An instruction is properly refused which points out a particular thing that would constitute contributory negligence and prevent the plaintiff from recovery.

Action in case for personal injuries. Appeal from the City Court of East St. Louis; the HON. MORTIMER MILLARD, Judge, presiding. Heard in this court at the March term, 1911. Affirmed. Opinion filed November 11, 1911. Rehearing denied April 3, 1912.

WISE, KEEFE & WHEELER, for appellant; MASTIN & SHERLOCK, of counsel.

DAN MCGLYNN, for appellee.

Martini v. Donk Bros. Coal & Coke Co., 169 Ill. App. 139.

MR. JUSTICE MCBRIDE delivered the opinion of the court.

This was an action brought by appellee against the appellant in the City Court of East St. Louis, Illinois, for damages on account of an injury received by him on November 21, 1908. There were two trials, the first resulting in a verdict in favor of the plaintiff for $2,090, which verdict was set aside and a new trial granted. The second trial resulted in a verdict for the plaintiff for $1,000, upon which judgment was rendered and the cause appealed to this court by the defendant.

The declaration alleges in substance, that the defendant was operating a coal mine in Madison county, Illinois, and that in its said mine certain tracks were used for the purpose of handling empty cars thereon which were returned from the pit top after being unloaded; that a certain track, known by defendant as the runaround track, was used for the purpose of storing empty cars and making up trips of the same to be taken therefrom to the various rooms and working places of the miners employed in said mine, by means of an electric motor or engine, which motor and trips of cars were operated and controlled by a motorman of the defendant named Carpenter; that plaintiff was directed by the defendant to assist the said motorman in conveying loaded cars to the bottom for the purpose of being hoisted to the top, and trips of empty cars when taken from said run-around track to the various working places in said mine; that in performing such duties he was called a trip rider and was under the control of the motorman, and was unfamiliar and inexperienced with the duties of such position, and the dangers arising from uncoupling said cars, and wholly unfamiliar with the manner of handling empty cars on said runaround track; that defendant had a certain endless chain near the bottom of said shaft which it used for the purpose of moving empty cars when returned to the

Martini v. Donk Bros. Coal & Coke Co., 169 Ill. App. 139.

bottom, and the said run-around track on which empties were stored, and defendant permitted empty cars from time to time to be thrown to and against other empty cars standing on said track, all of which the plaintiff, at the time complained of, was unfamiliar with and was inexperienced and had no notice or knowledge of the method employed by the defendant in handling said empty cars; that on the date aforesaid he was directed by the said Carpenter, motorman in charge of said motor, and whose orders he was bound to obey, to uncouple a certain number of cars in a string of empty cars then standing on said run-around track; that while attempting to make such uncoupling and while in the exercise of due care and caution for his own safety, and while without any notice or knowledge of the dangers of uncoupling such cars, under such conditions, certain other empty cars were run down on said run-around track against the empty cars thereon standing so as to push and shove the same against the cars which the plaintiff was trying to uncouple, whereby the plaintiff's right hand was bruised, mashed and, wounded, and the bone broken, and the leaders and muscles of his wrist and hand were injured and destroyed, and that he was permanently disabled thereby. The amended declaration is the same as the original except that in the amendment it is alleged that Carpenter carelessly and negligently ordered and directed. the plaintiff to uncouple a certain number of cars in a string of empty cars then standing on said runaround track, and without instructing or warning the plaintiff of the dangers and perils ordinarily incident to said work, in the manner it was then being conducted.

Counsel for appellant claim, first, that the appellee did not make out his case by a preponderance of the evidence, as the law required he should do; second, that the court committed reversible error in refusing

Martini v. Donk Bros. Coal & Coke Co., 169 Ill. App. 139.

to grant a new trial; third, that the court erred in refusing certain instructions offered by appellant.

We will consider the first and second of these claims together, as the determination of these matters depends upon a consideration of the evidence. There is not much dispute about the facts in this case, except as to what occurred just prior to and at the time that appellee was attempting to uncouple the cars.

It appears from the record, that the defendant's method of handling the coal at this mine was, that tracks were maintained at the bottom and on each side of the shaft to correspond with tracks set on the floor of the cage, when the cage was at rest, and would be on a level and constitute a continuous track over the cage; that when an empty car was sent down from the top and the cage was at rest, a loaded car was pushed on to the cage and against the empty car, and caused it to run off on to the tracks on the opposite side. When the car thus pushed off would go upon the tracks it was carried by its own momentum to a given point where a chain became attached to the car, which pulled it up an incline. The machinery was then released and the car continued to run down a decline; this track was partly on a curve so the empty cars which left the cage followed this curved track which would cause the cars to eventually be collected in the opposite direction from which they were started from the cage, and this was called the run-around track, and was where the empties were placed preparatory to distributing these empty cars to the various parts of the mine, as they were needed, to be filled with coal. A motor was in use at this mine which was operated by electricity. The motor would come in to this runaround, or storage track, after the empties and be coupled on to an empty car and this empty car was coupled to a number of other empty cars, in the same manner as freight cars are coupled together to be drawn by an engine. The coupler used to connect these