The third and fifth requests raise substantially the same question, and may be considered together.

We are of opinion that the defendant was not entitled to have these instructions given without qualification. We do not think the existence of the facts supposed would show the plaintiff's carelessness so clearly and beyond all controversy that it should be held as a matter of law that, if these facts were found, he could not recover, though they might furnish strong evidence of his carelessSnow v. Housatonic Railroad, 8 Allen, 441; Gaynor v. Old Colony & Newport Railway, 100 Mass. 208; Chaffee v. Boston & Lowell Railroad, 104 Mass. 108.

ness.

care.

The fact that a person voluntarily takes some risk is not conclusive evidence, under all circumstances, that he is not using due. Thomas v. Western Union Telegraph, 100 Mass. 156; Mahoney v. Metropolitan Railroad, 104 Mass. 73. The plaintiff was engaged in performing the duty required of him, and it was necessary that the cars should be moved quickly to make way for an expected train. If the plaintiff had the knowledge supposed in the requests for instructions, the question of his due care depended to some extent upon the view the jury might take of his necessity for immediate action, the distance the bunters would have to pass each other before the car and engine would come so near together to injure him, the speed at which the engine was moving, the knowledge he had that the engineer knew the danger, the confidence he was entitled to have that the engineer would so manage the engine as not to injure him, the reliance he was reasonably entitled to place upon his ability to make the connection so as to prevent the bunters passing, and probably other circumstances.

Under all the instructions given we do not think the jury were likely to be misled.

Exceptions overruled.

Injuries Arising from Cars with Coupling of Unequal Height.-There are several authorities holding that a servant upon a railroad is not entitled to recover damages for an accident occasioned by the simple fact that cars in the same train happen to have couplings of unequal height. Fort Wayne, J. & S. R. R. Co. v. Gildersleeve, 33 Mich. 133; Botsford v. Central Michigan R. Co., 33 Mich. 256; Hodgkins v. Eastern R. Co., 119 Mass. 419; Hulett v. St. Louis, R. C. & N. R. Co., 67 Mo. 239; Toledo, etc., R. Co. v. Asbury, 84 Ill. 429.

But see Muldowney v. Illinois Central R. Co., 36 Iowa, 462; Penna. Co. v. Long, 15 Am. & Eng. R. R. Cas. 345.

Coupling Cars.-As to the authorities upon injuries to servants received while coupling cars, see generally, Chicago, B. & Q. R. Co. v. Warner, and note, infra.

CHICAGO, BURLINGTON & QUINCY RAILROAD Co.

2'.

WARNER.

(108 Illinois Reports, 538.)

Where a railway company has in use on its road, freight cars without end ladders, steps and handles, which are necessary in coupling or uncoupling while the cars are in motion, and a freight conductor is cognizant of this fact, it is clearly his duty, before attempting to pass from the side to the end of the car for the purpose of uncoupling it, to ascertain whether it is one of that kind, and if he finds it is, it is negligence on his part to attempt to make the uncoupling while the train is in motion.

In cases of negligence resulting in the infliction of a personal injury, the dainages, to a large extent, rest in the discretion of the jury. About all the court can do is to confine the jury in their assessment to such damages as are shown by the evidence to result necessarily from the injury complained of.

No proof is required of facts which everybody is presumed to know. When such facts become material, it is the duty of courts and jurors to take notice of them, and act upon without proof.

So in a suit to recover damages for the loss of an arm, etc., no proof to show that such loss would impair the party's ability to pursue his ordinary business is necessary, upon which to base an instruction relating to damages growing out of the want of such ability.

Proof of the crushing and mangling of a plaintiff's arm from the fingers up to within a few inches of the shoulder, and of its subsequent amputation at the shoulder, is sufficient evidence of such degree of pain on his part as to make it a proper element to be considered by the jury in estimating damages.

In a case against a railroad company to recover damages for a personal injury, where several acts and omissions of duty were charged as negligence and the cause of the injury, it was held, that a failure to prove each and all of the alleged acts and omissions did not constitute a variance.

An instruction in an action to recover for a personal injury resulting in the loss of an arm, etc., informed the jury that in case they found for the plaintiff it would be proper to consider certain things, and "all damages, present and future, which, from the evidence, can be treated as the necessary and direct result of the injury complained of:" Held, that the instruction was not subject to the objection of leaving a question of law to the jury.

Instructions should be based upon evidence relating to the general or some particular aspect of the case, and it is the duty of the court to determine in the first place whether there is any evidence relating to the hypothesis assumed by a particular instruction. So if there is evidence tending to prove a fact, an instruction that if such fact is not proved the verdict should be a certain way, is erroneous, as not being based on evidence, and so submitting a question of law to the jury.

One of the main issues in an action against a railroad company was, whether the injury of the plaintiff was caused by the negligence of the company in its failure to furnish a car in question with proper steps or an end ladder. An instruction was asked, that if the jury believed, from the evidence, that the plaintiff had, before the trial, made written statements of the cause of the accident to an agent of the defendant, wherein he attributed the accident to the manner in which the engineer slacked up the train,

and the way in which the car door slid, as well as to the absence of a step, and that such statements were true, and that the accident could not have happened if the engineer had not slackened up as he did, the plaintiff could not recover. It was held, the instruction was properly refused, as it gave undue prominence to a part of the evidence, and tended to divert the attention of the jury from the main issue, and cause them to decide the whole case upon a mere subordinate issue.

Whether there is any evidence upon a given point or issue, or not, is purely a question of law to be determined by the court, and it is not proper to submit such question to the jury.

If a reviewing court can see that a case has been fairly tried, and that the judgment is clearly right upon the facts or merits, and that another trial would result the same way, it will not reverse because of an error in the giving or refusing of an instruction. But when the case is a close one on the facts, and the evidence is about evenly balanced, a reversal will be had for any substantial error in the trial court on a material question that may have turned the scale in favor of the successful party.

By pleading the general issue the defendant admits the sufficiency of the declaration, which he cannot afterward question by motion to exclude the evidence under it. To question the sufficiency of a declaration the defendant should demur to it, or move in arrest of judgment.

APPEAL from the Appellate Court for the first district; heard in that court on appeal from the Circuit Court of Cook county. Melville W. Fuller, for appellant.

Thomas Cratty and W. S. Johnson, for appellee.

MULKEY, J.-On the 10th of August, 1877, Samuel Warner, the appellee, brought an action on the case in the Cook Circuit Court, against the Chicago, Burlington & Quincy Railroad Company, the appellant, to recover damages for personal injuries received by him while in the employment of the company, and which are claimed to have been occasioned through its negligence. There was a trial on the merits in the circuit court, resulting in a verdict and judgment in favor of appellee, and against the appellant, for $5,000. This judgment, on appeal to the appellate court for the first district, was affirmed, and the company brings the case here for re

view.

The accident giving rise to the present suit occurred about two o'clock in the morning of the 20th of August, 1875, at Buda, Bureau county, this State, on the main track of the company's road. Appellee had been in the company's service about six years-the first four as brakeman, and the last two as freight conductor. At the time of the accident he had charge of a freight train, and was proceeding to uncouple and detach a car therefrom, the train at the time being in motion. For this purpose, by means of steps running up the side and near the end of the car, he had climbed about half way up to the top, when, standing upon one round of the steps and holding with one hand to another, he threw himself around the corner of the car, expecting to get hand and foothold on similar steps on the other side, from whence he could easily have passed to the dead-wood in the center of the end of the car, where

the uncoupling had to be made, but it so happened the car in ques tion had no such steps on it, and there being nothing there which he could take hold of, appellee lost his balance and fell between the rails of the track, the moving train passing over his body. In doing so the iron rods under the center of the brake-beam caine in contact with his left arm, crushing and mangling it from the fingers up to within about four or five inches of the shoulder, where, by reason of the injury thus received, it was subsequently amputated.

The negligence with which the company is charged, and which is relied on for a recovery by appellee, is the company's failure to provide the car in question with end steps or ladder to be used in making couplings and uncouplings, and for other purposes. It is alleged, in substance, in each of the three counts of the declaration, that it was the duty of the defendant "to provide only properly and carefully constructed cars, with end ladders, side handles and steps thereto attached," and that by reason of its failure to do so the injury in question occurred. A direct issue was formed upon this averment in the declaration of the defendant's plea, and the same has been conclusively settled against the appellant. It remains, therefore, to inquire what, if any, errors of law appear of record requiring a reversal.

It is first objected the court erred in giving the plaintiff's third instruction. It is as follows:

"If, under the evidence and instructions of the court, the jury find the defendant guilty, then, in estimating the plaintiff's damages, it will be proper for the jury to consider the effect of the injury in future upon the plaintiff, the use of his arm, and his ability to attend to his affairs generally, in pursuing any ordinary trade or calling, if the evidence shows that these will be affected in the future, and also the bodily pain and suffering he sustained, and all damages, present and future, which, from the evidence, can be treated as the necessary and direct result of the injury complained of."

The first two objections to this instruction, as stated in the counsel's own language, are: First, "there was no evidence that the loss of Warner's arm did, or would, impair his ability to pursue his business, much less to the extent of which said ability would be lessened." Second, "there was no evidence of the extent of the pain Warner had suffered, other than the loss of his arm, and that pain, as an element of damage, could not be inferred from that fact." The third objection goes to the language used in the concluding part of the instruction, namely, "and all damages, present and future, which, from the evidence, can be treated as the necessary and direct result of the injury complained of." The specific objections to the use of this language are: First, "there was no evidence to base it upon;" and second, "it left a question

of law to the jury." It will be perceived these several objections, except the last, substantially amount to the same thing, and may therefore be properly considered together. The only difference in them is, that they respectively relate to separate parts of the instruction, or to distinct elements of damage contemplated by it; but they are all placed upon the same common ground, namely, that there is no evidence upon which to base the instruction.

We are unable to agree with counsel that the proof of the crushing and mangling of plaintiff's arm from the fingers up to within a few inches of the shoulder, and of its subsequent ampu tation at that place, as is shown by undisputed testimony, affords no evidence of that degree of pain which would make it a proper element to be considered by the jury in estimating the damages. The rules of evidence are but the product of human experience and common sense, and hence they never require the performance of an unnecessary or useless thing. One of the most elementary of these rules is, that no proof is required of facts which everybody is presumed to know. When such facts become material in a legal controversy, it is the duty of courts and juries to take notice of them, and act upon them without proof. It is also part of the common experience of all, that many facts are so intimately connected with and dependant upon each other that the proof of one necessarily establishes the other, or at least affords so strong a presumption of the latter's existence that no additional proof of it will be required until such presumption is overcome by countervailing testimony. In fact the whole theory of inductive proof is but the practical application of this fundamental principle. 1 Wharton on Evidence, Sec. 327, et seq. To satisfactorily prove a given act also establishes, at least prima facie, the ordinary and probable consequences of such act; and as pain uniformly follows the crushing of a bone or the laceration of the flesh of one in a normal condition, which is always presumed when nothing to the contrary appears, the jury in this case were fully warranted in inferring the fact of pain from the character of appellee's injuries, which were fully shown-hence it cannot be truthfully said there was no evidence to base the instruction upon, so far as it related to the pain or suffering of appellee. Indeed, we do not think any general words of the witness, such as, "I su.fered a great deal," The pain was very severe," and the like, would have marked more definitely the quantum or degree of suffering than the simple recital of the mangled condition of the arm, requiring its amputation.

But it is suggested that while some pain might be inferred from the injury itself, yet the extent of appellee's sufferings should have been otherwise shown in order to make it an element in the assessment of damages. This position is clearly not tenable, either upon reason or authority. Where, in such case, the law permits a