APPEAL from Appellate Court, First District. Action by August Torpe, administrator, against the West Chicago Street Railroad Company. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendant appeals. Judgment reversed. JOHN A. ROSE and LOUIS BOISOT, JR. (W. W. GURLEY, of counsel), for appellant. DOUTHART & BRENDECKE and VOLLMER & CAMELON, for appellee. HAND, J. This is an action on the case for negligence resulting in the death of appellee's intestate. Verdict of jury and judgment indicated may have depended upon the age, experience, intelligence, and other characteristics of the plaintiff as evidenced by his appearance and the facts brought out at the trial, there was no issue of manhood or childhood in such a case, and the use by the court of the phrase above quoted was, in effect, submitting such an issue to the jury." Judgment for plaintiff for $500 reversed. Alighting from street car— Sudden start-Passenger - In GAFFNEY V. ST. PAUL CITY R'y Co. (Minnesota, December, 1900), 84 N. W. Rep. 304, the complaint alleged that on August 24. 1899, the plaintiff was lawfully taking passage upon one of the defendant's passenger cars at Seven Corners, in the city of St. Paul, when the defendant negligently and without warning suddenly started the car while she was upon the step thereof, whereby she was thrown to the ground and injured. The answer put in issue these allegations, and affirmatively alleged that any injuries the defendant may have sustained were caused by her own negligence. Verdict for the plaintiff for $1,000, and the defendant appealed from an order denying its motion for judgment or for a new trial. On appeal the judgment was affirmed. The syllabus by the court stated the case as follows: "This is a personal injury action, in which it is held: plaintiff, and whether she was a passenger at the time she was injured, was one of fact, and that the verdict is sustained by the evidence. If a street car stops at a usual place for passengers, and a person in the exercise of due care gets upon the steps or platform of the car, for the purpose of taking passage, while it is so waiting, he is to be regarded as a passenger. "That instructions to a jury ought to be simple, clear, and direct in statement, and, so far as practicable, in a concrete form, and that the trial court did not err in refusing certain requested instructions by the defendant as to what constituted a passenger, and the duty of its conductor in the premises." Alighting from train-Sudden start — Evidence. — In CLARK v. SMITH et al., RECEIVERS OF CENTRAL VERMONT R. R. Co. (Vermont, March, 1900), 47 Atl. Rep. 391, the case is stated by TAFT Ch. J. (per opinion by the court), as follows: "The plaintiff claimed that his intestate was a passenger on the defendant's train from Brattleboro to Londonderry; that when the train reached Jamaica orders were given for the passengers to change cars; that the intestate arose from her seat for that purpose, and stood in or near the door of the car; that the train had stopped, and was then so suddenly started and again stopped that in consequence she was thrown through the door to the ground, and so injured that she died two days after. The testimony of all the witnesses tended to show that the of the court thereon for appellee, appeal to the Appellate Court for the First District, judgment of that court affirming the judgment of the Circuit Court, and appeal from that judgment to this court. The declaration consists of two counts. The first count alleges that, while the deceased was mounted upon the step of a certain train of cars of the defendant, the defendant's gripman negligently started said train suddenly forward at a great and unlawful rate of speed, so that the deceased was thrown off and killed. The second count alleges that while the deceased was attempting to mount, and was mounting the said train of cars, the defendant's gripman negligently started said train suddenly forward at a great and unlawful rate of speed, so that the deceased was thrown off and killed. The evidence showed that the deceased met his death by being run over train had stopped at the time of the accident; that it had come to a standstill before the decedent started to leave the car. The testimony of the plaintiff's witnesses tended to show that the train, after stopping, was suddenly started; that, as the witnesses described it, they (the trainmen) gave ayank' to the train. One of the witnesses described it as a jolt,' and another as a slight snap,' and that the train went four or five feet, and then stopped. One witness said the train started, and gave a sudden stop, and the decedent fell out of the door. One of the witnesses testified that when the train had come to a standstill the decedent had got up first, and stepped over the bench, and got to the door, as the car gave a jolt and threw her out of the door. The testimony of the defen lants tended to show that after the train came to a standstill there was no movement of the train until after the passengers went out of the car which they intended to and did leave at the Jamaica station, and that the decedent fell in attempting to go out of the car when the car was not in motion. In this situation of the case, testimony was admitted to show how the train was handled on the way from Brattleboro to Jamaica, and that the train was jerked violently at other stations, for the purpose of characterizing the way the trainmen were handling the train, the management of it, and the way it was under control. The court said it might be material as showing the condition of the train as affected by the running. How the train was managed at other stations had no tendency to show how it was managed at Jamaica. That it was jerked violently at other stations had no tendency to show that when standing still a Jamaica it was suddenly started and then stopped in the manner the plaintiff claims it was at the time of the accident, and such testimony was not relevant upon the question of the condition of the train. How it was running at other stations was collateral to the issue on trial, and its admission was error. There having been error upon the trial in this respect renders it unnecessary for us to consider the question in respect to damages. Judgment [for plaintiff] reversed, and cause remanded for a new trial." Boarding street car — Duty of passenger.— In WALKER v.ST. PAUL CITY R'Y Co. (Minnesota, November, 1900), 84 N. W. Rep. 222, action for damages sustained by plaintiff while attempting to take passage on one of defendant's Interurban cars, plaintiff had a verdict. After motion for judgment upon the verdict, or for a new trial in the alternative, which were denied, defendant by one of the appellant's cable cars about 6 o'clock P. M., December 17, 1894, on West Madison street, in the city of Chicago, between Rockwell street and Campbell avenue, a short distance east of appellant's power house. West Madison street runs east and west, having on it a double street-car track. The car that ran over the deceased was eastward bound, and was the rear trailer of a cable train consisting of a grip car and two trailers. The testimony on behalf of appellee tended to show that the train in question slowed up in order to receive the deceased as a passenger; that thereupon he stepped with one foot upon the lower step of the car, holding onto the car with both hands; that before he could fully mount the car the train suddenly started with a jerk, throwing him off, so that he was dragged under the car feet first, run over, and killed. The appealed. Judgment affirmed The syllabus by the court states the case as follows: 44 It is not the duty of a person seeking passage on an electric street car to assume that proper signals to stop the car will be disregarded, but such passenger may have regard to the probable conduct of the person in charge of the car, and act accordingly, when such reliance is not apparently attended with danger. "It is not, as a matter of law, negli. gence for a person intending to take passage on a street car to assume that such car is running at the customary rate of speed, and to act with reference to such custom, in the absence of evidence to the contrary. "Evidence considered, and held to support the finding of the jury that defendant negligently disregarded signals to stop one of its electric cars, which was run at a reckless rate of speed past the proper stopping place, and that plaintiff was not negligent, under the facts found by the jury in this case, in passing before such car, when intending to enter the same as a passenger." COLLINS and BROWN, JJ., Co. (New Jersey Err, and App., Novem- testimony for appellant tended to show that the deceased attempted to catch hold of the first trailer as it passed him at full speed in the middle of the block, fell head foremost in front of the last trailer, and was run over and killed. On the trial of this case appellee introduced, over appellant's objection, evidence tending to show that appellant had a custom of stopping its cars near the point where appellant's intestate was killed, for the purpose of taking on passengers. Appellant assigns as error the admission of such testimony, and relies solely upon such assignment for a reversal of this case. The main controversy on the trial in the court below was over the between the car steps to see to the loading of the train, had, after signaling to the engineer, left their posts and entered the cars before the train actually started, so that they did not see the plaintiff at all. Held, that this was evidence to go to the jury upon the question whether the servants of the defendant had failed to use reasonable care to see that the plaintiff was not in such a position that he would be likely to be endangered by the starting of the train, and that a motion to nonsuit the plaintiff and a motion to direct a verdict for the defendant were each properly refused." Child injured while boarding street car - Sudden start. - In STATE (HERBICH) v. NORTH JERSEY STREET R'Y Co. (New Jersey Supreme Court, November, 1900), 47 Atl. Rep. 427. the opinion by the court (per GUMMERE, J.), states the case as follows: "The case presented by the plaintiff, who was a very young child, was that she was thrown from an electric car of the defendant company, after she had entered it as a passenger in the charge of her mother, by the negligence of the employees who were operating it, and was very seriously injured. The negligence alleged was that the car was started before she had been afforded an opportunity to be seated, and, further, that it was started with a sudden and vio. lent jerk. There was a judgment for the plaintiff, and this writ of error is sued out to test its validity. In disposing of the case, it will be necessary to consider but one of the numerous assignments of error which have been filed, namely, the refusal of the trial judge to charge the jury that "the starting of a car before a passenger is seated is not negligence." Not only was this request refused, but it was left to the jury to say whether it was negligence to start a car while the plaintiff was on her way to a seat. I think that the refusal to charge this request was error. It is a matter of common experience that thousands of people daily ride in these cars without being seated, and that their doing so is unaccompanied by any danger; that while they are doing so the cars are stopped and started again at every street corner with perfect safety to such travelers. It may, perhaps, be that a greater degree of care in the starting of a car is required when some of the passengers are standing than when they are seated, but it is no part of the duty of these companies to refuse to carry on their cars more passengers than can be seated therein, or to delay starting them while any of such passengers remain standing. And this is equally true in the case of a child non sui juris, accompanied by and in the care of its parents, as in that of an adult. The judgment below should be reversed." rate of speed at which the train which passed over the deceased was going at the time he attempted to mount the same. A number of witnesses testified on behalf of appellee that the same was moving very slowly at that time, while a number testify on behalf of appellant that the same was moving very rapidly and at full speed. All agree that it was moving. The rapidity with which such cars were moving at the time the deceased undertook to mount the same was important. To permit the appellee to corroborate the testimony of his witnesses who had testified upon that issue, by proving that at other times the trains of the appellant ran slowly or stopped at this particular point for the purpose of receiving passengers, is, in our judgment, prejudicial error. The case of Railroad Co. v. Lee, 60 Ill, 501, is an action on the case, wherein the negligence alleged was the failure to ring the bell or sound the whistle as the train approached the crossing where the injury took place. In order to show such failure, evidence was introduced that trains had at other times passed that crossing without ringing a bell. This court held such evidence wrongly admitted, and say (page 504): "From the fact of omitting to ring the bell at any previous time, no reasonable inference could be drawn that it was not rung on the occasion in question." A vital point in issue in that case was whether there was a failure to ring the bell at the time of the injury. The vital point in issue in this case is the rate of speed at which the cars were going at the time the deceased attempted to mount the same. If, as the witnesses for appellant testify, the cars were going at a full rate of speed when the deceased attempted to mount the same, this testimony could not be legitimately overcome by testimony that cars passing this place on the day previous, or at some other time, stopped or ran slowly. In the case of Railway Co. v. Clayberg, 107 Ill. 644, which was an action on the case for negligence resulting in the death of the plaintiff's intestate, the defendant sought to show that at the time of the injury the deceased was not observing due care for his own protection, by proving that before that time he was in the habit of jumping on trains. The court held such evidence inadmissible, and say (page 649): "No authority is referred to sanctioning the admission of such evidence, and we are not aware of any. Its effect is clearly to raise a collateral and immaterial issue. If such evidence is admissible, to prove negligence on the part of the plaintiff's intestate, then the same character of evidence must be admissible to prove negligence on the part of the defendant, which has been condemned by the entire weight of judicial authority." It is contended that such evidence was proper and material to be |