26 Ill. 255 | Ill. | 1861
We only deem it necessary in this case, to examine the question whether the husband of appellee was guilty of such gross negligence as relieves the company from liability for his death. To authorize a recovery, it is not enough to simply show that the company were guilty of negligence, but it should also appear that deceased was not also guilty of negligence in some degree comparable to that of the company inflicting the injury. Each party is bound, whilst pursuing their legal business, to exercise a due regard for the rights of others. And when each is equally at fault, and both parties negligent, the injured party has no right to recover for an injury he has thus contributed to produce. Each party must employ all reasonable means to foresee and prevent injury. Where the party receiving the injury has acted with even a slight degree of negligence contributing to produce the injury, to recover, he must show that the other party has been guilty of gross negligence.
Whilst the party upon whom the injury is inflicted must use all reasonable care, he is not held to the highest degree of precaution of which the human mind is capable. Nor to recover, heed he be wholly free from negligence, if the other party has been culpable.
Whilst we can have do doubt that the agents of the road were guilty of negligence in stopping their freight train on the side track, between the ticket office and the passenger train, at the time the latter was receiving passengers, the deceased was bound to use reasonable efforts to escape injury. The company having placed the freight train between the ticket office and the passenger train, should have opened the former so as to afford an easy and safe passage to and from the passenger cars. In that position all persons wishing to pass must have gone between or around the cars. To pass through was hazardous, to go around a lengthy train very inconvenient. And when' placed in that position, the imprudent or reckless might be induced to pass through and become injured.
The deceased knew that an engine was attached, with steam up, liable to move at any moment. It was in the night, when the engineer or conductor would not be likely to see or know of his effort to pass between the cars. He gave no notice of his intention to pass through, and these officers had the right to suppose a prudent or reasonable person would not attempt to pass at the time and under the circumstances. And the evidence seems to show that the bell was rung, and the usual notice thus given, before the train was moved. We are, from all these facts, of the opinion that the deceased was guilty of gross negligence in attempting to pass between the cars when in motion, or when on the point of moving. There can hardly be a doubt but that any reasonably prudent and careful person would have gone around the train, or would have waited until it passed. His conduct, we think, contributed more largely to his death than the negligence of the company. Had he used ordinary prudence, the occurrence would not have taken place. And whilst the company were guilty of such negligence as would have rendered them liable for injury to a child, or a person of less than ordinary mind, yet the deceased being an adult, must be presumed to be endowed with sufficient reason to enable him to exercise ordinary prudence. Having failed to do so, the company cannot be held liable for the injury.
The judgment of the court below must be reversed, and the cause remanded.
Judgment reversed.
