62 Ill. 326 | Ill. | 1872
delivered the opinion of the Court:
This is an action on the case, brought by the appellee against the appellant for personal injuries. At the time the appellee received the injuries complained of, she was about seven and one-half years old. In attempting to cross the several tracks of appellant’s road, five or six in number, where the same pass over Chestnut Street, in the city of Blooming-ton, she was struck and run over by an engine, by which one leg was severed from the body, and one hand crushed.
In regard to the comparative negligence of the respective parties in the transaction which resulted in the injuries to the appellee, there is a vast amount of evidence preserved in the record. The real questions in the case are, through whose fault or negligence did the injury to the appellee occur, or, if the appellee was guilty of contributory negligence, ivas the negligence on her part slight in comparison with that of the agents of the appellant ?
Upon these questions the evidence presents & very sharp and difficult issue, and all the controverted facts in the case relate to the conduct of the appellee and the servants of the appellant at the time of the happening of the casualty.
In case of injury resulting from negligence, the doctrine of the comparative negligence of the party injured, and of the party producing the injury, has been so fully recognized, and the distinction so accurately stated in the former decisions of this court, that it is not now deemed necessary to discuss the question anew. It may be regarded as the settled law.of this State, as declared in the case of The Chicago, Burlington & Quincy R. R. Co. v. Payne, 49 Ill. 499, that when the negligence producing the injury is equal or nearly so, or that of the plaintiff" is greater than that of the defendant, in such cases the plaintiff can not recover. On the other hand, although the plaintiff may be guilty of negligence, yet if it is slight in comparison with that of the defendant, the plaintiff may recover. C. & R. Is. R. R. Co. v. Still, 19 Ill. 499; C. & A. R. R. Co. v. Gretzner, 46 Ill. 74; Ill. Cent. R. R. Co. v. Middleworth, 43 Ill. 64; O. & M. R. R. Co. v. Eaves, 42 Ill. 288; St. L., Alton & T. H. R. R. Co. v. Manley, 58 Ill. 300.
The fourth and eighth instructions of the series given on behalf of the appellee, on the trial, wholly ignore the doctrine of compartive negligence as uniformly held by the decisions of this court.
By those instructions the jury were told that if the appellant by its servants, the engineer and fireman of the engine that caused the injury, were guilty of negligence in the management of the engine, then the appellee could recover without any regard to the fact of negligence on her part. Neither of these instructions, if considered alone, states the law correctly as applicable to the facts of this case, and would, doubtless, tend to mislead the jury. The vital question upon which the jury were to pass, was the comparative negligence of the appellee and the servants of the appellant. Upon an issue of this character, where the evidence is so conflicting, as in the case at bar, the jury ought to have been most accurately instructed. The object of instructions from the court is to enlighten ihe minds of the jury, to enable them to render an intelligent verdict on the evidence that shall be just between the parties.
We can see, in a case like the one at bar, where the recital of the sufferings endured by a plaintiff of such tender years would naturally tend to touch the sympathies of the jury, that instructions so framed as the ones above noticed, would be calculated to mislead the jury. The inclination of the mind of the jury would be to the interest of such a plaintiff, and these instructions would warrant a verdict not authorized on principles of law. It is not a sufficient answer to this view, in a case like the one under consideration, where the” evidence is conflicting, and the determination of the question at issue one of difficulty to inexperienced persons, to say that some of the numerous instructions contained in the series given for the appellant and appellee, may have stated, with some degree of accuracy, the doctrine of comparative negligence. In case the jury considered these instructions alone, they could have reached the conclusion stated in their verdict, simply on finding that the servants of the appellant were guilty of negligence, without reference to the fact whether the negligence of the appellee contributed to produce the injury, for the reason that they were distinctly told by the instructions of the court that they might do so. In view of the facts of this ease, as developed in the evidence, we are of opinion that it was error in the court to give instructions numbered four and eight on behalf of appellee, without qualifying them by telling the jury to consider whether the appellee herself had not been guilty of a high degree of negligence, even for a person of her age.
Inasmuch as this case is to be submitted to another jury, to be more accurately instructed, we forbear at this time to comment on the evidence, the sufficiency of which to sustain the verdict is questioned by the assignment of errors.
So far as the instructions asked by the appellant, and refused by the court, state correct principles of law, they were substantially given in the other instructions given at its instance, and therefore there was no error in the court in refusing to give them the second time.
For the error of the court in giving improper instructions on behalf of the appellee, the judgment is reversed and the cause remanded.
Judgment reversed.
