| Ill. | May 18, 1880
delivered the opinion of the Court:
The evidence introduced upon the trial of this case in the court below was extremely conflicting,—so much so that it became important the jury should be accurately instructed. Numerous objections are made to instructions given by the court below, but it will be unnecessary to notice all of them, and we shall consider only the fifth, eleventh, twelfth and twenty-seventh instructions given on behalf of appellee.
The fifth instruction given at the request of appellee was faulty in telling the jury not only that “in this case it is necessary for the plaintiff to prove (or it should appear from the evidence) that” plaintiff “was not guilty of such negligence * * * * as would or did contribute materially to the injury,” but also that this should be made to appear “ to the satisfaction of the jury." This language is too strong. Juries are required in civil cases to decide facts upon the weight or preponderance of the evidence, and this, too, where the proof does not show the fact in question to the satisfaction of the jury. In such cases the jury may find any given fact in a given way, upon their judgment as to the weight or preponderance of the evidence, though they may have reasonable doubts as to the real truth. The law in such cases does not demand that every material allegation be established to the satisfaction of the jury, and it was error to tell the jury so in the instruction.
Appellant insists that the instruction is bad because it takes no note of cases where the negligence of defendant is gross, and does not limit the rule as to contributory negligence to cases where defendant’s negligence is not gross.
The general rule of law is, that where the plaintiff was himself guilty of negligence, which contributed to the injury alleged to have been caused by defendant, he can not recover. In this State it has long been held that that rule is not without its exceptions; and that in exceptional cases, where the injury is the result of gross negligence in defendant, plaintiff may maintain his action, although his own negligence contributed to the injury, if his own negligence was but slight.
It is not required that all the law on the subject of negligence should be embodied in one instruction; nor is it always necessary in all cases, where the general rule of law is stated, that all exceptions to the rule should be stated. Where the further explanation, showing the exception to the rule, is given to the jury in another part of the charge, an omission to insert the exception in each statement of the general rule will not be regarded as vicious or erroneous. In this case, however, we fail to find an accurate explanation of the rule in case of gross negligence in defendant.
In another part of this instruction the jury are told plaintiff can not recover, unless the proof shows that by the exercise of proper care he could not have averted the injury. This is not a satisfactory statement of the law. The law prescribes the degree of care required in every class of cases—in other words, what is proper care is determined by the law, and is to be declared by the court; whether such care has in fact been exercised in the conduct of a party in a given case, is a question of fact, which may properly be submitted to a jury. The law, in this case, made it the duty of plaintiff to exercise ordinary care.
This instruction leaves the jury to determine the question of law as to what is proper care, or as to what degree of cave the law requires in such case, and they are not confined to the question whether the plaintiff used ordinary care.
By the eleventh and twelfth instructions given at the request of the defendant, the jury are told that if plaintiff failed to exercise ordinary care, he was guilty of gross negligence; and, also, in the eleventh it is said that where the plaintiff is injured, for want of ordinary care, no action will lie unless defendant wilfully inflicted the injury. These propositions are unsound. Negligence is a failure to exercise the care required by law. In cases were the law requires the exercise of ordinary care, and requires no more, the slightest failure in that regard is negligence. It is plain that in such case a party may exercise some care, and yet not so much care as men of ordinary prudence would usually use under such circumstances, and hence would be somewhat at fault; and it is plain that the care, so exercised, may vary in degree, ranging through every point, from the least possible care which can be regarded at all as care, up to the point where the care so exercised falls short of the standard of ordinary care in the least possible degree. To say, then, that every failure to attain the standard of ordinary care constitutes gross negligence, is palpably an error and one well calculated to mislead a jury.
Nor can it properly be said, as is stated in the eleventh instruction, that, “ where a person is injured for want of ordinary care, no action will lie, unless the injury is wilfully inflicted by the defendant,” or, as is said in instruction number 27, that if it were reasonably possible for plaintiff, under all the circumstances, to have prevented the injury by the exercise of proper precaution, and if such care would have averted the injury, in such case he was guilty of gross negligence, and can not recover, unless the defendant wilfully inflicted the injury.
Aside from the deceptive and misleading character of the use of the phrase, “reasonably possible,” and the erroneous substitution of “ proper precaution,” for “ ordinary care,” it is a palpable error to say, that where plaintiff fails in any degree to use the full measure of care required of him, he can not recover, unless the injury was inflicted “ wilfully ” by the defendant. A jury, in such connection, would doubtless understand the word “wilfully” to mean the same as the word “intentionally,” and would understand that if plaintiff failed in any degree whatever to use care up to the standard of “ ordinary care,” then, no matter how far defendant may have fallen short of ordinary care in the matter, or how grossly destitute of care the conduct of defendant may have been, still, in such case no recovery can be had, unless the injury was intentionally inflicted by defendant, or, in other words, unless this railroad company allowed its track to rise above the surface of the ground at this place for the purpose of injuring this plaintiff, or at least for the purpose of throwing people, who might chance to attempt to cross at that point, out of their wagons and wounding them. The proposition, when analyzed, is simply absurd. The court below gave too many instructions—so many that the charge, for this reason alone, was calculated to confuse, rather than to enlighten.
It is not for us, or the court below on the trial, to express any opinion upon the weight of the evidence in this case, or on the question of whether the plaintiff's conduct was in fact free from negligence, or, if negligent, whether his negligence was of great or slight degree; nor to say whether defendant was guilty of a want of care at all or not, nor, if guilty of any want of care, whether its shortcomings in that regard were great or small, gross or slight. For the errors indicated the judgment must he reversed, and the cause remanded for another trial.
Judgment reversed.