| Ill. | Nov 5, 1890
delivered the opinion of the Court:
The Appellate Court, in their opinion filed herein, say: “The case as presented by the evidence was such that the jury might have found either way upon the question whether appellee exercised ordinary care, and whichever way they found we would not feel justified in disturbing their finding. This being a question of fact, entirely within the province of the jury, where their finding may be supported in any reasonable view of the evidence, it should stand. It is only when there is no evidence in the case upon which the finding of the jury can rest, or where the finding is against the clear weight of the evidence, that we are justified in setting the verdict aside.”
It thus appears, and the-same fact is made manifest by an examination of the testimony, that the controverted and controlling issue submitted for the decision of the jury was, whether appellee, at the time he received the injuries of which he complains, was in the exercise of ordinary care, or whether, on the contrary, he was guilty of such contributory negligence as to bar his right of recovery. It being a close case upon that question, it was of vital importance, in order that the jury might arrive at a just conclusion, that .they should be accurately instructed in respect to such issue.
The doctrine of comparative negligence only has application in a ease where a plaintiff has exercised ordinary care. Here, the jury were told by the court, in the third instruction for appellee, that “in this case” “the jury -have the right, under the law, to compare the negligence of plaintiff and defendant, * * * although the jury may believe, from the evidence, that the plaintiff was not wholly without negligence.” This was equivalent to informing the jury, as matter of law, that the plaintiff had exercised ordinary care. It is true that the instruction concluded by saying, that if. the jury further believed, from the evidence, that the defendant was guilty of gross negligence whilst the plaintiff was only guilty of slight negligence, then such slight negligence would not prevent a recovery. But the instruction started out with the assumption that the plaintiff used ordinary care, which necessarily implied his negligence was hut slight, and then proceeded, the ■clauses being transposed, whilst the plaintiff was only guilty of slight negligence, yet if they believed, from the evidence, that the defendant was guilty of gross negligence, then such slight negligence would not prevent a recovery. In other words, the jury would naturally and most likely conclude that the only question of fact for them to determine in favor of the plaintiff, in order to entitle him to a verdict, was, that “the defendant was guilty of gross negligence.” The jury would the more probably thus interpret the instruction in view of the second instruction asked by appellant, as it was modified and given. The court properly refused this latter instruction in the form in which it was submitted, for the omission of a person approaching a railway crossing to look or listen for an approaching train, does not necessarily, and as matter of law, constitute negligence. (Terre Haute and Indianapolis Railroad Co. v. Voelker, 129 Ill. 540" date_filed="1889-06-17" court="Ill." case_name="Terre Haute & Indianapolis Railroad v. Voelker">129 Ill. 540.) But the instruction, as modified and given, plainly told the jury, that if they believed, from the evidence, that the plaintiff failed to exercise ordinary care, and if by the exercise of such ordinary care he could have prevented the injury, then he could not recover, unless it was further believed, from the evidence, that the defendant was guilty of gross negligence. The necessary implication from this latter instruction was, that gross negligence on the part of the defendant would obviate the necessity of ordinary care on the part of the plaintiff; and the doctrine thus announced is the same as that which we have above found is deducible from the third instruction for plaintiff. Both instructions were palpably erroneous, and being addressed, as they were, to the paramount issue in the case, they were well calculated to and probably did mislead the jury.
The first instruction for appellee was inaccurate. The statute imposes a liability upon railway companies for all damages sustained by reason of a neglect to either ring a bell or sound a steam whistle when approaching places where their railroads •cross a public highway. The instruction does not make the liability of defendant for damages depend upon the fact that they were occasioned by a failure to ring a bell or sound a whistle, but dependent upon the fact that such failure lulled the plaintiff into a feeling of security. The plaintiff may have been lulled into a feeling of security by the neglect of defendant in that behalf, non constat such neglect occasioned the injury. In Peoria, Pekin and Jacksonville Railroad Co. v. Siltman, 67 Ill. 72" date_filed="1873-01-15" court="Ill." case_name="Peoria, Pekin & Jacksonville Railroad v. Siltman">67 Ill. 72, a similar instruction was condemned, and it was there said: “This is an evasion of the statute, and was calculated to mislead the jury.” The requirement in the instruction that they should believe, from the evidence, that the plaintiff “was struck _and injured as charged in the declaration,” did not sufficiently cure the defect therein, since the jury probably understood that language to refer to the charge in the declaration that the locomotive struck the wagon and broke it in pieces, and thereby threw him with great force upon the ground, etc.
The fifth instruction for appellee was also objectionable. The only negligence charged in the declaration in respect to the personal injuries received by plaintiff, and in regard to which the instruction would have application, was a failure to ring a bell or sound a whistle. If the action is to be regarded as based upon the statutory liability imposed for the non-performance of one or the other of those acts, then the instruction, in requiring that a warning should have been given such as was reasonable and timely under the circumstances, declared a higher duty than the statute imposed.' (Peoria, Pekin and Jacksonville Railroad Co. v. Siltman, 67 Ill. 72.) If, on the other hand, the action is regarded as based upon the common law duty to give reasonable warning of the approach of the train, then it would seem the instruction was broader than the averments of the declaration justified, the pleader having stated therein the particular breaches of such duty upon which he relied, and having made no general averments of neglect of duty in that behalf.
Without holding that the inaccuracies in the first and fifth instructions would, of themselves, afford grounds that required the reversal of the judgment, yet they are entitled to some weight in' considering whether or not the jury was properly and fairly instructed at the trial, and they should be corrected at another trial.
The eleventh instruction asked by appellant was properly refused. It was argumentative, and invaded the province of the jury, and would have set them afloat upon a sea of surmise. And, besides this, appellee was in a position of danger, and notwithstanding the wind may have been blowing so hard that he would likely not have heard the warnings, yet he was entitled to the benefit of the possibility he might have heard such warning.
The judgment is reversed and the cause remanded.
Judgment reversed.