{
  "id": 5316176,
  "name": "John Marchese, Appellee, v. The Aurora, Elgin & Chicago Railroad Company, Appellant",
  "name_abbreviation": "Marchese v. Aurora, Elgin & Chicago Railroad",
  "decision_date": "1910-06-03",
  "docket_number": "Gen. No. 14,970",
  "first_page": "267",
  "last_page": "270",
  "citations": [
    {
      "type": "official",
      "cite": "156 Ill. App. 267"
    }
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "196 Ill. 203",
      "category": "reporters:state",
      "reporter": "Ill.",
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        841268
      ],
      "opinion_index": 0,
      "case_paths": [
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    {
      "cite": "53 Ill. App. 424",
      "category": "reporters:state",
      "reporter": "Ill. App.",
      "case_ids": [
        858585
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-app/53/0424-01"
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  "last_updated": "2023-07-14T20:19:00.079639+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "John Marchese, Appellee, v. The Aurora, Elgin & Chicago Railroad Company, Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Mack\ndelivered the opinion of the court.\nThis is an action on the case to recover damages for personal injuries sustained by appellee while a passenger on an interurban train operated by appellant.\nThe accident happened at the Lombard station on appellant\u2019s line, between 9 and 10 o\u2019clock P. M., on August 19, 1906. Appellee boarded the train at the Fifth avenue station in Chicago with the intention of getting off at Lombard, which was about one hour\u2019s ride west of Chicago. He sat in the smoking compartment on the west end of the first car of the train, on the south side of the car and in the first seat facing west. His ticket to Lombard was accepted by the conductor in charge of the car. ;\nThere are three stations in Lombard, East Lombard, Lombard proper, where this accident happened, and West Lombard. All tickets sold for these three stations read to \u201cLombard.\u201d East Lombard and West Lombard are flag stations and after the train leaves Lombard passengers desiring to get off at West Lombard, 2,000 feet distant, frequently get up and start for the rear of the car to be ready to get off when the car stops.\nThe train in question reached Lombard at 9:31 P. M., and stopped for a length of time estimated at from one minute to five minutes.\nAppellee\u2019s version of the facts is that when the train reached Lombard the conductor called out the station, the car came to a stop, appellee, who was in his shirt sleeves, put his coat on his arm, walked briskly through the car to the rear platform, passed by the conductor, who was on the platform, down the steps and was just about to step to the station platform when the car suddenly started forward and he was thrown down, sustaining injuries.\nAppellant contends that appellee had been sleeping; that the car had started slowly after leaving Lombard station when appellee, discovering this, rushed through the car, past the conductor who endeavored to check him, pulling the bell at the same time to stop the car, and jumped off while the car was moving.\nEach of the parties is supported by several credible disinterested witnesses. We have carefully examined their testimony and are unable to say, despite the numerical majority in favor of appellant, that the verdict for the plaintiff is against the clear preponderance of the evidence.\nComplaint is made of the following instruction:\n\u201cThe jury are instructed that they, under the instructions of the court and from the evidence, are the sole judges of all the questions of fact in this case, and the court does not by any instruction given to the jury in this case, intend to instruct or indicate to the jury how they should find any question of fact.\u201d\nThe instruction held erroneous in C., B. & Q. R. R. Co. v. Greenfield, 53 Ill. App. 424, a case relied upon by appellant, reads:\n\u201cThe jury are instructed that the questions of care or want of care, and the negligence or want of negligence of the defendant and of the deceased, are questions of fact for the jury to decide under all the evidence in the case and all facts and circumstances as shown by the evidence.\u201d\nThe court said of this instruction:\n\u201cIt is true that the questions whether the deceased exercised ordinary care and whether the defendant was negligent, were questions of fact to be decided by the jury in the case, but they were to be decided under the guidance of the court in its instructions according to the established rules of law regulating the rights and duties of the parties and defining care and negligence.\u201d\nThe instruction in the present case does not make the jury the sole judges of the facts independent of the guidance of the court, but only \u201cunder the instructions of the court.\u201d See too South Chicago Ry. Co. v. McDonald, 196 Ill. 203.\nThe refusal to give an instruction reading:\n\u201cThe court instructs the jury that if you believe that any witness in this case has testified to any matters which the physical facts in evidence render impossible to be true, that then such testimony may be disregarded by you,\u201d is also complained of.\nAs we view the testimony, this instruction was not applicable to the evidence in this case, and it is at the best cautionary.\nAs we find no reversible error, the judgment will be affirmed.\n'Affirmed.",
        "type": "majority",
        "author": "Mr. Justice Mack"
      }
    ],
    "attorneys": [
      "Hopkins, Peppers & Hopkins, for appellant.",
      "Charles M. Foell and Earl J. Walker, for appellee."
    ],
    "corrections": "",
    "head_matter": "John Marchese, Appellee, v. The Aurora, Elgin & Chicago Railroad Company, Appellant.\nGen. No. 14,970.\n1. Verdicts\u2014when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.\n2. Instructions\u2014when as to determination of facts not erroneous. An instruction on this subject as follows approved:\n\u201cThe jury are instructed that they, under the instructions of the court, and from the evidence are the sole judges of all the questions of fact in this case, and the court does not by any instruction given to the jury in this case, intend to instruct or indicate to the jury how they should find any question of fact.\u201d\n3. Instructions\u2014when refusal will not reverse. The action of the court in refusing a mere cautionary instruction not applicable to the evidence in the case will not reverse. |\nAction in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Egbert W. Wright, Judge, presiding.\nHeard in the Branch Appellate Court at the October term, 1908.\nAffirmed.\nOpinion filed June 3, 1910.\nHopkins, Peppers & Hopkins, for appellant.\nCharles M. Foell and Earl J. Walker, for appellee."
  },
  "file_name": "0267-01",
  "first_page_order": 291,
  "last_page_order": 294
}