123 Ill. 518 | Ill. | 1888
delivered the opinion of the Court:
This is an appeal from a judgment of the Appellate Court, affirming a judgment of the City Court of East St. Louis, wherein appellee, administrator of the estate of Levi Guess, deceased, recovered a judgment against the Chicago and Alton Eailroad Company for negligence resulting in the death of the intestate, Levi Guess.
The first error relied upon is, the court erred in admitting improper evidence for the plaintiff. A witness for the plaintiff had testified that a Chicago and Alton engine and crew went into the stock-yards switch at East St. Louis and left the switch open, which resulted in the injury complained of. On cross-examination, the witness was asked how he knew the switch was left open. He replied, “Because they told us so.” It is sufficient to say of this evidence, that the court, on the request of defendant, excluded the answer of the witness to the question from the jury, so that the evidence was not before the jury for their consideration.
It is also complained, that counsel for plaintiff made improper remarks in the presence of the jury. The improper remarks consisted of an offer made by plaintiff to prove certain facts, which the court, upon the offer being made, held was incompetent. We perceive no error in this. The practice is well settled, that a party has a right, when he has a witness -on the stand, to offer to prove such facts as may be thought to be material to the case, and if the court rules that the evidence is incompetent, the offered evidence may be incorporated into a bill of exceptions, and the ruling may thus be reviewed on appeal or writ of error.
One instruction was given in behalf of the plaintiff, and that is claimed to be erroneous. It is as follows:
“The jury are instructed, that if they believe, from the evidence, that Levi Guess was killed in the manner stated in the declaration, through the fault of the defendant’s employes in negligently leaving the switch open, and was exercising due care himself at the time, or if the jury believe, from the testimony, that the said Levi Guess was guilty of slight negligence contributing to his death, and that the employes of the defendant were guilty of gross negligence contributing to the death of the said Levi Guess, but that the negligence of the said Guess was slight and that of defendant’s employes was gross, when compared with each other, the plaintiff is entitled to recover, and the verdict should be accordingly.”
The law is well settled that the plaintiff could not recover unless, at the time of the accident, the deceased was in the exercise of due care for his own safety, and if the instruction was calculated to convey the idea to the jury that plaintiff might recover although deceased was guilty of negligence which materially contributed to the injury, it could not be sustained. But we do not think the language used will bear that construction. It will be observed that the term “due care” is incorporated in the first part of the instruction as one of the requirements upon which a recovery might be had, and we think the second ground named in the instruction, upon which a recovery might be had, must be understood as also being predicated upon the fact that the deceased was in the exercise of due care for his personal safety, otherwise the instruction would be bad.
But if there was any probability of the jury being misled by the instruction of plaintiff upon this question, the instructions of defendant were so clear and pointed that no ordinary juror could fail to understand the law. As an example, in No. 2 the jury were directed, that “before the plaintiff can recover, he must prove, by the weight of the evidence, first, that the defendant’s servants left the switch open; and second, that the deceased, Levi Guess, approached that switch with due care and caution. If the jury believe, from the evidence, that the defendant’s servants left the switch open, yet if they further believe, from the evidence, that the deceased, Levi Guess, approached that switch with his train in a careless and imprudent manner, and did not exercise due care and caution, then the jury will find for the defendant.” And in No. 10 they were told, that although they might find that defendant’s servants left the switch open, yet if they further found that the deceased, in approaching the switch with his train, by exercising ordinary care, might have discovered that the switch was open, and thus avoided the consequences of defendant’s negligence, then it was his duty to do so, and if he failed in this respect, the jury will find for defendant. These instructions are plain, and the fact that no recovery could be had unless the deceased exercised ordinary care and caution, is brought out so prominently that we can not conceive how the jury could be misled, conceding that the instruction complained of is not as clear and as well guarded as it ought to have been.
It is also claimed that the court erred in refusing instructions Nos. 5 and 6, and in modifying the same. As to No. 5, its substance was embraced in Nos. 2 and 10, which were given to the jury. No. 6 was as follows:
“If the jury believe, from the evidence, that the deceased, Levi Guess, was guilty of more than slight negligence, then the jury will find for the defendant.”
To this the court added, “if the jury believe, from the evidence, he was guilty of negligence.” We think the instruction, as prepared, announced a correct proposition, but, at the same time, we perceive no objection to the modification. ,It in no manner changed the meaning of the instruction, but called the attention of the jury to the fact that the evidence must determine whether deceased was negligent or not.
This disposes of all questions of law raised in the argument, and as we perceive no substantial error, the judgment of the Appellate Court will be affirmed.
Judgment affirmed.