87 Ill. App. 446 | Ill. App. Ct. | 1900
delivered the opinion of the court.
As to the first insistence made by counsel for appellant, that the verdict Avas against the evidence, and the trial court erred in not setting it aside on that account, all we Avill say is that we express no opinion on that question because we feel compelled to reverse the judgment on account of erroneous instructions given at the instance of the appellee, and will remand the case for another trial on that account.
Appellant insists that the court committed reversible error in giving plaintiff’s instructions numbered two, three and six- which are quoted in the statement preceding this opinion. By instruction number two the court told the jury if they believe from the evidence that the defendant was guilty of negligence in running its trains over the crossing at a high and dangerous rate of speed, as alleged in the declaration, and that by reason of such negligence the deceased, while in the exercise of due care, was struck by said train and thereby killed, then they should find a verdict for the plaintiff; thereby submitting to the jury the simple question of whether the speed of the train was so high and dangerous as to amount to negligence on the part of .the defendant in so running its train, and wholly omitting to refer the jury to other attending circumstances shown by the evidence, which may have affected the safety of persons using the highway and crossing in question, and which were necessary to be considered by the jury in properly determining the matter, and thus giving unbridled and unguided license to the jury to find any speed they might regard dangerous to be negligence. This instruction was well calculated to prejudice the jury against the contention of defendant on the trial, that the speed of the train was not dangerous to persons using the highway in question, in view of all the facts, circumstances and surroundings appearing from the evidence, for which reason it ought not to have been given, and by giving it the court committed reversible error.
Plaintiff’s instruction number three, after telling the jury what signals the laws of this State required every railroad to give before reaching, and while passing over, public highways, then proceeded as follows :
“ It is a question for you to determine from the evidence whether the law as above stated was complied with by the defendant; and it is also for you to decide from the evidence whether Theodore T. Wade, the deceased, was or was not in such condition that he could have heard the bell or whistle if the former was rung or the latter sounded.”
This instruction submitted to the jury a question not in issue by the pleadings or proofs, for in neither does it appear that the plaintiff or defendant claimed or attempted to show that the condition or situation of the deceased was such that he could not hear signals if they were actually given, and therefore the court ought not to have submitted that question to be decided by the jury; besides, the instruction was well calculated to mislead the jury as to what the laws of this State require of railroad companies in regard to giving signals at public highway crossings for the benefit of persons using the same, and was well calculated to prejudice the defendant before the jury, and it was reversible error to give it.
Plaintiff’s instruction number six, like his number three, singles out a single omission of the defendant, and submits to the jury for their determination, without reference to any other attendant circumstances or surroundings, whether or not that omission constituted negligence. While under certain circumstances the defendant ought to have had a watchman at the crossing in question when the “Continental Limited ’’approached and passed over it, yet to warrant the jury in finding that the defendant was negligent by reason alone of failing to have one there, depended upon circumstances and surroundings then existing, which the jury should have considered in arriving at a proper conclusion, and to which their attention should have been directed by the instruction but was not. Such omission was harmful to the contention of appellant that the facts and circumstances shown by the evidence did not require it to have a watchman there, at the time.
Defendant’s refused instruction number eight stated that the defendant was not guilty of negligence in permitting the elevator to be on its right of way, if it was there for the convenience of trade and commerce. The court properly refused it because neither in the declaration nor by the evidence did plaintiff claim that the defendant was negligent for that reason alone. It was proper for the plaintiff to aver and prove that the elevator was so situated as to obstruct the view of defendant’s trains to persons approaching the crossing on the highway from the south, as an attendant circumstance to show the negligence charged and attempted to be proved. The giving of that instruction as drawn, was calculated to confuse the jury, and would have prejudiced the rights of the plaintiff, for which reason it was properly refused.
For the errors indicated we reverse the judgment of the Circuit Court and remand the case for such further proceedings therein as to law and justice appertain.
