214 Ill. App. 455 | Ill. App. Ct. | 1919
delivered the opinion of the court.
This is error by the plaintiff below, who seeks to reverse a judgment for defendant, entered upon the verdict of a jury. The action was in ease.
Plaintiff in her declaration alleged that she became a passenger on one of defendant’s cars, that the car stopped for the purpose of permitting her to alight, that while she was doing so with due care, defendant, without warning, suddenly started up the car, throwing plaintiff to the pavement and severely injuring her.
The testimony of plaintiff and other witnesses produced in her behalf tended to sustain the allegations of the declaration, while that offered for defendant tended to sustain its contention that plaintiff fell and sustained her injury shortly after she alighted from the car and without any negligence on defendant’s part.
The error urged here is that the jury were improperly instructed as to the law. Defendant’s given instruction No. 7 was as follows:
“You are instructed that the plaintiff is required by law to establish her case by a preponderance of the evidence before she can recover. If the plaintiff in this suit has not so established her case, or if the evidence is evenly balanced, or if you are in doubt and unable to say on which side is the preponderance, then, in either of these cases, the verdict should be not guilty.”
This instruction is criticized as tending to mislead the jury. There are decisions of the Appellate Court which seem to so hold: Gehrig v. Chicago & A. Ry. Co., 201 Ill. App. 287; Thiele v. Hetzel, 184 Ill. App. 634; Illinois Steel Co. v. Koshinski, 135 Ill. App. 587.
However, the law as stated in this instruction has been approved by the Supreme Court in Koshinski v. Illinois Steel Co., 231 Ill. 198; Chicago City Ry. Co. v. Nelson, 215 Ill. 436; Vischer v. Northwestern El. R. Co., 256 Ill. 572, and we are bound by these decisions.
The 15th instruction for defendant is also criticized. It told the jury: “That the mere happening of an accident, in and of itself, raises no presumption of negligence on the part of the defendant, nor is it evidence, in and of itself, of the exercise of due care on the part of the plaintiff.” Plaintiff in error claims this instruction is misleading in a case like this, where the theory of the plaintiff was that the injury was caused by instrumentalities wholly within the control of the defendant carrier. New York, C. & St. L. R. Co. v. Blumenthal, 160 Ill. 40; Heineke v. Chicago Rys. Co., 279 Ill. 210. Plaintiff, however, requested and the court instructed the jury, “while no person is liable for a pure accident, still the law of this case is,” etc., thus adopting in substance the instruction. She is, therefore, not in a position to complain. McInturff v. Insurance Co. of North America, 248 Ill. 92.
By the 16th instruction for defendant the jury were told:
“It is not every accident that mates a street railway company liable for damages. If an accident is unavoidable, then no liability is incurred, whether, as a result of it, a person is seriously or slightly injured. And so, if you believe from the evidence in this case, that so far as the defendant is concerned the accident proved was unavoidable, then the plaintiff cannot recover.”
This instruction was not applicable to the facts of the case upon the theory of either of the parties, and the court is of the opinion that it should not have been given. The majority of the court, however, are of the opinion that the jury were not misled thereby, and that the error was therefore harmless.
The judgment will be affirmed.
Affirmed.