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court in a number of cases. (Pennsylvania Co. v. Marshall, 119 Ill. 399; Laflin & Rand Co. v. Tearney, 131 id. 322; Chicago City Railway Co.v. Hastings, 136 id. 251; St. Louis, Alton and Terre Haute Railroad Co. v. Holman, 155 id. 21; Ohio and Mississippi Railway Co. v. Porter, 92 id. 437; Race v. Oldridge, 90 id. 250; City of La Salle v. Kostka, 190 id. 130; Mt. Olive and Staunton Coal Co. v. Rademacher, 190 id. 538; Logg v. People, 92 id. 598.)
Appellant complains of the fifth instruction, given for the appellee upon the trial below, upon the alleged ground that the instruction does not leave it to the jury to believe from the evidence in regard to the matters therein set forth, but assumes that there is evidence of the matters so enumerated. The instruction is not subject to the objection thus urged against it. It merely defines the measure of damages, and authorizes the jury, in case of finding the defendant guilty, to assess plaintiff's damages at such a sum as they believe from the evidence will be a fair compensation to him for pain of body, loss of earnings, and expenses incurred; and the instruction requires that all these shall be "shown from the evidence in the case.” Such an instruction is not required to recapitulate all the different elements, constituting a cause of action, which have been set forth in other instructions. Its design is to inform the jury what dainages they shall award, in case they find the plaintiff entitled to recover. (Chicago, Milwaukee and St. Paul Railway Co. v. O'Sullivan, 143 Ill. 48; McMahon v. Sankey, 133 id. 636; Chicago, Milwaukee and St. Paul Railway Co.v. Dowd, 115 id. 659; Chicago, Burlington and Quincy Railroad Co. v. Payne, 59 id. 534; Springfield Railway Co. v. Hoeffner, supra).
Appellant further complains of the sixth instruction, given for the appellee, which defines the word "unavoidably" as used in the declaration. Appellant contends that, inasmuch as the declaration avers that the engine and cars "were unavoidably run and driven upon the said track," a recovery could not be had without showing that
it was impossible to avoid running them upon such track; that is to say, that the word "unavoidable" is synonymous with “inevitable." Counsel for appellant says, that inevitable or unavoidable accidents are accidents produced by physical causes which are inevitable and amount to vis major; such as lightnings, storms, perils of the sea, earthquakes, inundations, sudden death or illness, and that, when the word "unavoidably” is used, there is required under the law the highest degree of care.
The construction thus contended for is strained and unnatural. The meaning of the allegation in the declaration is that, with the exercise of ordinary care, the running of the engine and cars on the track was unavoidable, and not that it was unavoidable under all circumstances and conditions; that is to say, the allegation in the declaration means; that the cars were run and driven on the track while the switch was left open, notwithstanding the exercise of ordinary care on the part of appellee's crew. This manner of alleging the grievance complained of is found in all the old precedents. (2 Chitty's Pl.13th Am. ed.-p. 599). The instruction told the jury that the word, "unavoidably," as used in the declaration and instructions, “means unavoidably by the exercise of ordinary or due care on the part of the persons operating and controlling the engine and two cars of the Clover Leaf before and at the time of the injury to the plaintiff.” We think that the instruction correctly defined the term, as used in the declaration.
It may furthermore be observed, that the case was tried, and the jury was instructed at the instance of both sides, upon the theory that the only questions involved were as to the appellant's negligence in leaving the switch open and the car projecting out over the lead, and the appellee's observance of due care. When the facts proven are not within the allegations of the pleadings, neither party can complain, if each procures instructions, declaring the rules of law applicable to the facts
shown by the testimony, regardless of the issues made by the pleadings, and asks a verdict in accordance therewith. (Illinois Steel Co. v. Novak, 184 Ill. 501).
Appellant also complains that the lower court erred in refusing to give instructions asked by the defendant, numbered 16, 17 and 18, respectively.
The declaration alleged in substance, that one Pierce was receiver of the Clover Leaf Railroad Company, and had possession of the road, yard and engines as such receiver, and that appellee was working for him as such receiver. Instructions 16 and 17 assume that appellee was required to prove these allegations, and that the question was properly raised by objections to the evidence. Appellant contends that the appointment of the receiver, and the fact, that he was operating the tracks of a railroad company, could not be established without producing record evidence of his appointment, and of his authority so to act. The appointment of the receiver and his operation of the road were merely collateral inquiries, and it was only necessary to show that appellee was rightfully on the engine. But if proof of these allegations was necessary, the appellant itself furnished such proof. Appellant, upon the trial, introduced in evidence the declaration, filed in a suit brought by appellee against the receiver of the Clover Leaf railroad. Appellant is bound by the allegations of this declaration, because it was a part of its own proof. This declaration alleges, that Pierce was receiver of said road, and that appellee was employed by such receiver as a: switchman in the yards of said company in the city of East St. Louis, and that said receiver was operating said railroad, and was using its locomotives, cars and switch engines.
Instruction 18 told the jury that, if they believed from the evidence “that the plaintiff was injured because of the failure of the crew of the Clover Leaf road, for which he was working, to keep a lookout to discover the condition of the switches, and whether there were any cars
in the Clover Leaf yard which they were likely to hit with their moving train, and this failure was negligence, then they should find for the defendant. This instruction was properly refused, because it proceeds upon the erroneous theory that appellee was a fellow-servant with the other members of the Clover Leaf switching crew, and with the members of appellant's switching crew. The negligence of the Clover Leaf switching crew could not be imputed to appellee, and could not, under any circumstances, be a justification for the wrongful acts of appellant, if its acts were wrongful. The negligence of a fellow-servant is a defense when an employee sues the common master, but not when he sues some one else for an injury. The suit here is not against the Clover Leaf Railroad Company, of which the appellee and the other members of the switching crew working with him were servants, but the suit is against the Chicago and Alton Railroad Company, and it cannot be claimed that their servants were fellow-servants of appellee. In such a case the doctrine of fellow-servant has no application. (Chicago and Eastern Illinois Railroad Co. v. O'Connor, 119 Ill. 586; Spry Lumber Co. v. Duggan, 182 id. 218).
But, even if it were true that the members of the switching crew of the Clover Leaf road failed to keep a lookout to discover the condition of the switches and to see whether there were any cars projecting over the main or lead track, such negligence on their part would be in combination with the negligence of the servants of the appellant company in failing to close the switch and in leaving the hindmost freight car to project over the main or lead track. It is well settled that, when the negligence of two is, in combination, the proximate cause of an injury, either or both may be held responsible for the consequences resulting from their combined negligence. (Pullman Palace Car Co. v. Laack, 143 Ill. 242). It is unnecessary to inquire whether the crew of the Clover Leaf company did or did not exercise ordinary care, if the ap
pellee himself was free from contributory fault, and the appellant's negligence was a proximate cause of the injury. The supposed negligence of Fox, who was on top of the forward car, and of Neff, the engineer, cannot be imputed to appellee, in order to exonerate the appellant from blame.
Third—It is furthermore contended by the appellant that the court below admitted improper testimony. The testimony thus objected to consists of the evidence of appellee's witnesses in stating what custom, if any, there was with regard to delivering cars by a railroad company to a foreign yard. The object of such question was to show that the usage or custom was to shove the cars in on the side switch track clear of the main or lead track, and to close the switches or leave them as they were found. We know of no good reason why this testimony was not proper. It was allowable for the appellee to prove a general custom or practice in regard to the delivery of cars in foreign yards. It appeared that the manner of making deliveries was in accordance with the general custom, and it could not be error to prove what that custom was. A usage or custom must be certain and uniform and general. A custom is general, when the method of dealing is the universal method of those engaged in the business where the usage exists. (27 Am. & Eng. Ency. of Law, pp. 719-724, and notes; Steamboat Albatross v. Wayne, 16 Ohio, 513; Park v. Piedmont Life Ins. Co. 48 Ga. 601; Sturges v. Buckley, 32 Conn. 265; Chicago Packing and Provision Co. v. Tilton, 87 Ill. 547).
The case was tried below upon the theory on the part of appellee, that there was a custom or usage in this re. gard, and on the part of the appellant, that there was a custom or usage in this regard. The custom, contended for by appellant, was different in its nature and character from that contended for by appellee. Both sides tried the case upon the theory that proof of custom was allowable and essential. If the testimony of appellee upon