4 Ill. App. 664 | Ill. App. Ct. | 1879
The first and fifth instructions given on behalf of the plaintiff fail to lay down the correct measure of care and diligence required of an employer in providing suitable and safe machinery, and other appliances for his employes. He is in no sense an insurer of the actual safety of the machinery and appliances so provided. The law imposes upon the employer only the obligation to use reasonable and ordinary care and diligence in providing suitable and safe machinery. Camp Point Manufacturing Co. v. Ballou, 71 Ill. 417. The instructions go farther than this, and require that the machinery shall actually be ordinarily or reasonably safe. It amounts to a requirement that the employer shall be a guarantor or insurer of a reasonable degree of safety in his machinery, and in default of such degree of safety, whatever may have been his care and diligence in providing it, his liability becomes absolute.
Under this rule, all the plaintiff would be required to prove to make out a case would be, that the machinery was not ordinarily safe; whereas, under the well established rules of law he must go farther and show negligence on the part of the employer in the selection of the machinery, or in keeping the same in repair.
The first instruction is also erroneous, in that it assumes that the defendant was guilty of neglect in not properly and safely fastening or attaching the hooks by which the weight was fastened to the rope. The jury are required to find from the evidence whether “ such weight fell in consequence of defendant’s neglect in not properly and safely fastening or attaching the hooks by which the same was fastened to the rope connected with such weight.” Here, manifestly, the negligence is assumed, and the jury are merely required to find whether the accident followed as a conseqence of such negligence. In Bond et al. v. People, 39 Ill. 26, this instruction was given: u If the jury believe, from the evidence, that - the defendants were together, and acted in concert at the time the assault to murder was made, they should find them equally guilty.” In commenting upon this instruction, the court says: “By this instruction the jury are plainly told that the defendants made an assault to murder; no other meaning can be given to the language used. It amounts to a finding by the court of the very fact the jury were sworn to try.”
Whether the defendantwas guilty of negligence, was a question to be determined by the jury from the evidence-,-and the instruction should have submitted such question to them, and required them to pass upon it.
The fifth instruction given for the plaintiff, is liable to the further criticism that it submits to the jury the question of due skill and attention on the part of defendant’s manager, etc., in attaching the damper to the rope. What is or is not due skill and attention, is a qiiestion of law for the court, and before requiring the jury to determine whether there was a want of it, the court should have informed them what would in law amount to due skill and attention.
The instruction given for the defendant, as modified, was clearly erroneous. It attempts to lay down the rule of comparative negligence which prevails in the State, but omits one of its essential elements. The rule as established by repeated .adjudications, and as precisely defined by the more recent decisions of the Supreme Court is, that a plaintiff who is even guilty of slight negligence, may recover of a defendant who has been guilty of gross negligence, or whose conduct has been wanton and willful. Both of these conditions must exist, when the plaintiff is guilty of negligence, before he can recover. I. C. R. R. Co. v. Hammar, 72 Ill. 347. It is not enough that the negligence of the defendant should be greater than that of the plaintiff, or that any degree of disparity between the two should exist, less than that which is expressed by the terms slight and gross. These two words, as applied to this subject, have acquired a legal and technical signification, and no other words or phrases can properly fill their places. The instruction in this case allows the plaintiff to recover in case the negligence of the defendant is greater than his, and enough greater so that his is slight in comparison therewith. This may all be, and still the defendant’s negligence not be gross. Negligence is divided by law writers into three degrees, viz: slight, ordinary and gross; and these words when applied to the subject of negligence, must be regarded as being used in reference to that classification.
The plaintiff’s negligence may be pronounced slight when compared with or distinguished from the degree next above it, with the same propriety as when compared with the highest degree of negligence. In the case last above cited, the court holds that the plaintiff’s negligence may have been slight as compared with the defendants, and still that of the latter may not have been gross.
For the errors in the instructions to the jury above pointed' out, the judgment must be reversed and the cause remanded for a new trial.
Judgment reversed.