64 Ill. 172 | Ill. | 1872
delivered the opinion of the Court:
"We can not reverse upon the evidence.
At the time of the injury, appellee was engaged in unloading coal for the Centrada Gas Company, from the car of appellant. He was directed there by the agent of the railway company, and had the right to enter the car for the purpose indicated.
He would have made slow progress with his work, if required constantly to watch for the approach of trains. Under such circumstances, the law imposes the duty upon the company to use all necessary- precaution, and to give proper signals to warn of danger.
The servants of the company probably did see, and, at-all events, might have seen, appellee at his work. If warning was given of the approaching train, it is extremely improbable that he would have continued his labor, and made no effort to guard himself from great danger.
As is usual, the testimony is very contradictory as to the ringing of the bell, and the exercise of proper care on the part of the company, and the finding of the jury in that regard should not be disturbed.
The negligence charged upon appellee is not shown by the record. The probable conclusion is, that he had no. knowledge of the train until the collision occurred; and in th& effort to prevent a fall between the cars, he fell on one side of them, and the injury resulted.
Objections are taken to certain instructions given for the plaintiff below. It is urged that the first instruction omits the important element that the plaintiff should have used due care; that the second is indefinite in the use of the phraseology, “ considerable negligence,” and “little negligence,” in comparing the negligence of the respective parties, and that the fourth makes the company liable for the carelessness of its servants, without regard to the negligence of the plaintiff.
It is a sufficient answer to thé first objection, that the instruction expressly requires the jury to believe, from- the proof, that the plaintiff was in the exercise of “ordinary care” at the time of the accident. Ordinary diligence only was required of the plaintiff to avoid the injury, and the liability of the company would then be fixed, if it was guilty of negligence.
In a comparison of the degree of negligence, though the words, “considerable” and “little,” are not the most appropriate, and are objectionable, yet we can not say, in view of the evidence, that the jury were misled by their use, and induced to find erroneously. The idea necessarily conveyed would be that the negligence of the one was small in degree when compared with the greater negligence of the other. The jury were compelled to consider the relative degrees of negligence of the parties, and measure the fault of one by the greater carelessness of the other.
Though the instructions should not have been given, we can not say, upon the whole record, that it operated injuriously, as the evidence warranted the verdict, and justice was done.
The objection to the fourth instruction is not well taken. It is averred, in all the counts of the declaration, that the plaintiff, in unloading the coal, and while in the car, was in the exercise of all proper care and diligence; and the instruction required the jury to believe, from the evidence, that the injury resulted, from the carelessness of the company, while the plaintiff was “at work, as alleged in the declaration.” Besides the express language contained in the first instruction, the attention of the jury was specifically called, by the fourth, to the necessity of proof that the plaintiff was, at the time, in the use of “all proper care and diligence.”
Complaint is made of two instructions refused. They were properly refused. The principles contained in them appropriate to be announced, were substantially embraced in eight other instructions given for the company.
They were likewise objectionable in themselves. The first assumed that if the collision was accidental, it would not constitute negligence. There is no evidence to justify the assumption, and it might have misled the.jury. The second required a constant watch for any approaching train. This was wholly unreasonable, and would have seriously hindered the very purpose, of going into the car, the unloading the coal.
The judgment is affirmed.-
Judgment affirmed.
