50 Ill. 264 | Ill. | 1869
delivered the opinion of the Court:
This was an action on the case, brought to the Alton City Court by John Henry, against the Keokuk Packet Company, for an inj ury alleged to have been occasioned by the carelessness and negligence of the defendants.
A verdict was found for the plaintiff, which the court refused to set aside, and rendered judgment thereon.
To reverse this judgment, the defendants appealed to this court, assigning as error, the refusal of the court to set aside the verdict as being contrary to the law and the evidence— giving improper instructions for the plaintiff, and in refusing defendants’ instructions, and in modifying the fourth instruction asked by them.
The verdict was one, we do not think, as we understand the evidence, we would have been willing to have rendered, believing the weight of it, when carefully considered, preponderates in defendants’ favor, but perhaps, not so greatly, as to justify the interference of this court. It was conflicting, and brings the case within the rule so often declared by this court. Morgan v. Ryerson, 20 Ill. 343; Bradley v. Geiselman, 22 ib. 494 ; Wallace v. Wren, 32 ib. 146.
The instructions for the plaintiff were six in number, of which the second and sixth were erroneous and should not have been given. The second omits a very important element, and that is, the consideration of the plaintiff’s own conductas to caution and circumspection on his part, in getting off the boat. Although the boat was violating the law by racing with another boat, and by reason thereof its stoppage at the usual landing place was abridged, so that the plaintiff had not a reasonable time allowed him to leave the boat in the usual manner by the staging, still, that did not relieve him from the duty of exercising proper care and prudence in leaving the boat. If the plaintiff was guilty of negligence, he could not recover unless that of the defendants was greatly in excess, and therefore, the omission of that element in the instruction, vitiated it.
The sixth instruction was this: “ If the jury believe from the evidence, that the boat was in motion, and the stagings were on board or being drawn on, and that it would have been as dangerous for the plaintiff, under the circumstances, to get off the boat by the way of the staging, as it was in getting off the way he did, they will find for the plaintiff as to that fact.”
We cannot but think this instruction misled the jury. It tells them to find for the plaintiff, if the plaintiff could not get off by the staging without injury to himself; then he was not culpable no matter how dangerous the mode be adopted for getting off may have been. His clear duty was to use proper care and prudence in his effort to leave the boat. If there were hazard and danger in one mode, and in that which he adopted, he should not have adopted it. Had the gang-plank or staging been drawn in, so that he could not leave the boat had he made known his wish to leave, which he did not, he had no right to risk his life or limbs by jumping off the boat in the manner he did. The gang-planks were not drawn aboard, but the shore ends were within a few feet of the land —the boat had not moved from the landing—the plaintiff made known to no person his desire to leave, but of his own impulse, and with great confidence in himself, imprudently jumped from the boat to the land. We think this instruction must have contributed very much to the finding of this verdict, and as we cannot see from the whole record that justice has been done, we must reverse the judgment and remand the cause, that a new trial may be had, and such instructions given as will not be inconsistent with this opinion. The defendants’ fifth and sixth instructions were properly refused, there being no such presumption, as therein claimed.
Judgment reversed.
