123 Ill. 38 | Ill. | 1887
: The questions discussed in argument have received careful consideration, and we are unable to find satisfactory reasons' for disagreeing with the opinion of the Appellate Court in its exposition of the law of the case, and to what is therein said we deem it necessary to add but a few brief remarks.
First—The objections to appellee’s second instruction which are most earnestly pressed, are: First, that there is no ground of comparison between the negligence of the plaintiff and that of the defendant; second, that the effect of the instruction is to tell the jury that the want of ordinary care on the part of the plaintiff was slight negligence as compared with the negligence of the defendant, etc.
1. There is evidence tending to show negligence in the defendant, for there is evidence which, considered by itself, proves that the plaintiff was injured because of the absence of a handle and step on the end of the defendant’s car over which the plaintiff’s duty required him to pass; and it can not affect the present question to contend that there may have been a preponderance of evidence proving that there was no negligence in this respect, for that was for the jury to determine, after being instructed. It is also contended by counsel for appellant, that plaintiff was likewise negligent in not ascertaining, before he attempted to pass over the ear, whether it had a handle and step, and this, too, was for the jury to determine, after being instructed. And so, necessarily, it was a question of fact properly before the jury, whether the evidence proved negligence which could be the subject of comparison. Shearman & Redfield on Negligence, (2d ed.) see. 43.
2. The instruction does not assume to declare what shall be proved to entitle plaintiff to recover. It simply, in effect, says, that the mere fact that the plaintiff was negligent, (if his negligence was slight and that of the defendant gross, in comparison with each other,) shall not prevent a recovery. A plaintiff, to recover, must have observed ordinary care to avoid the injury. If he did not do so he can not recover. If he did do so, and was injured by the defendant’s negligence, it is impossible, in a legal sense, that any negligence of which he may have been guilty can have been slight and that of the defendant gross, in comparison with each other. (Chicago, Burlington and Quincy Railroad Co. v. Johnson, 103 Ill. 512.) But it is not required that the plaintiff shall prove, in order that he may recover, when he has been injured by the negligence of the defendant, that he was free of all or of merely slight negligence, when considered in comparison with the gross negligence of the defendant. He may have been slightly negligent and yet have observed ordinary care, for the converse of slight negligence is great or extraordinary diligence. (Calumet Iron and Steel Co. v. Martin, 115 Ill. 358.) Beading this instruction of the plaintiff, therefore, in connection with the instructions of the defendant informing the jury that unless the evidence showed that the plaintiff had observed ordinary care he could not recover, it would not seem reasonable to suppose that the jury could have been misled.
Second—The seventh instruction asked by defendant was as follows:
“The jury are instructed, as a matter of law, that a railroad company is under no obligation to its employes to provide the best and safest appliances for its freight cars, and that if they believe that freight cars with steps at their ends would have been safer for employes to use in uncoupling ears, still the plaintiff can not recover, if the jury believe, from the evidence, that freight cars without such steps were not unreasonably unsafe and dangerous for employes to use while uncoupling cars.”
The court modified this instruction, and gave it as modified, as follows s
“The jury are instructed, as a matter of law, that a railroad company is under no obligation to its employes to provide the very best and safest appliances for its freight cars that could he produced, and if the jury believe that freight cars with steps on their ends would have been safer for employes to use in uncoupling cars, still the plaintiff can not recover, if the jury believe, from the evidence, that freight cars without such steps were reasonably safe for employes to use while uncoupling cars.”
The language of the modification is objected to, not because it states incorrectly a duty or obligation of appellant, (for it assumes to state or qualify no duty or obligation of appellant,) but from the implication which it is supposed the jury might draw from the language employed in stating what is not its duty or obligation, namely, because it is stated that appellant is under no obligation to provide the very best and safest appliances for its freight cars that could he produced, it could be inferred by the jury that appellant is under obligation to provide the best and safest appliances, etc. But this implication ia clearly rebutted by the concluding part of the instruction, wherein the jury are expressly told “that if they believe, from the evidence, that freight cars without such steps were reasonably safe for employes to use while uncoupling cars, ” the plaintiff can not recover. Moreover, it has been repeated, in many cases, that where a legal principle is clearly stated in one instruction it need not be repeated in others.
The court, in appellant’s fifth and twelfth instructions, told the jury as follows:
“5. The jury are instructed, as a matter of law, that a servant, when he enters into the service of an employer, impliedly agrees that he will assume all risks which are ordinarily and •naturally incident to the particular service; and the master or employer impliedly agrees that he will not subject his servant, through fraud, negligence or malice, to greater risks than those which fairly and properly belong to the particular service in which the servant is to be engaged. The master’s obligation is not to supply the servant with absolutely safe machinery, or with any particular kind of machinery, but his obligation is to use ordinary and reasonable care not to subject the servant to extraordinary or unreasonable danger. Hence, in this case, unless the jury find, from the evidence, that the absence of a ladder, or steps and handles, from the end of the car in question, subjected the plaintiff to extraordinary or unreasonable danger, the plaintiff can not recover. And if the jury find, from the evidence, that the plaintiff might, by the exercise of ordinary care, have discovered the absence of a ladder, or step's and handles, from the end of the car in question, and so averted the accident, the verdict should be ‘not guilty.’”
“12. The jury are instructed, as a matter of law, that the defendant was under no obligation to provide steps at the end of its freight cars for the use of employes, whose business it was to uncouple cars, provided the jury believe, from the evidence, that the use of freight cars without such steps did not render the work of uncoupling by such employes unreasonably dangerous and unsafe.”
Thus, here is clearly stated and repeated, not only the legal principles embodied in the appellant’s seventh instruction as counsel asked it to be given, but the entire duty of appellee, likewise. It is, moreover, presented in its direct application to the facts of the case, and it is therefore not unreasonable to suppose that if the seventh instruction had been given as asked, the jury would have been farther enlightened in respect ■of their duty under the evidence.
Third—The same observations are pertinent, and a sufficient answer to the objections urged, because of the modifications of other instructions asked by the defendant. The principles of law embodied in the refused instructions, other than the first, were stated with sufficient fullness in the instructions which were given. And the first instruction was properly refused, because it assumed to take the case from the jury, notwithstanding the contrariety of the evidence on the questions of negligence.
It may be observed, that although it may not be error to give an instruction, argumentative in form, where it assumes the existence of no controverted fact, and states the law accurately and fairly, such a mode of instructing a jury is always ■objectionable, because of the almost insuperable difficulty in thus presenting both sides of the case with equal clearness and fairness, allowing, as our practice does, the respective attorneys to draw the instructions in behalf of the opposing parties. It is, strictly speaking, never within the province of the court to tell the jury that an ultimate fact is proved from the existence of given, evidentiary facts. See Best on Evidence, (Morgan’s ed.) sec. 82. The defendant’s refused instruction numbered 13, is a fair illustration of the violation of this principle,—that is, that if certain evidentiary facts enumerated are proved, then the ultimate fact (negligence) is not proved,—or conversely, in other words, due care is proved. Concede that where this is a correct conclusion no harm can follow, still it is an invasion by the court of the domain of the jury, and can not, therefore, be error to disallow.
The judgment is affirmed. J °
T , . „ , Judgment affirmed.
