Village of Sheridan v. Hibbard

Mr. Justice Mdlkey delivered the opinion of the Court: The appellee, Timothy Hibbard, recovered a judgment of $3500, in the circuit court of La Salle county, against the village of Sheridan, for alleged negligence in suffering one of its sidewalks to become out of repair, by reason whereof the plaintiff was caused to stumble and fall thereon, whereby he was seriously injured. This judgment was affirmed by the Appellate Court for the Second District, and the defendant appealed to this court. All of the alleged errors relied on for a reversal which this court is permitted to consider, arise on the plaintiff’s fifth instruction, which is as follows: “If the jury find the defendant guilty, then they should assess the plaintiff’s damages. If the jury find the defendant guilty, the plaintiff will be entitled to recover for any pain and anguish, which he has suffered, or will hereafter suffer, in consequence of said injury; for any and all damages to his person, permanent or otherwise, occasioned by said injury; for loss of time, if any be proved, occasioned by said injury; for expenses incurred in a reasonable effort to effect the cure of said injury, provided the jury believe, from the evidence, that the plaintiff has been damaged in the regards aforesaid; and, generally, the plaintiff will, if the jury find the defendant guilty, be entitled to recover all damages alleged in the declaration which they may believe, from the evidence, he has sustained by reason of said injury,” We do not think any of the objections taken to this instruction are well founded. The chief objection, expressed in a few words, as we understand it; is, that it does not contain the hypothesis of due care on the part of the plaintiff at the time the'injury occurred, or in his subsequent conduct, with a view to a recovery. Counsel, in their' criticism, seem, as not unfrequelitly happens, to lose sight of the object and purpose of the instruction. It is an error to-suppose that every instruction asked by a plaintiff must, without regard to the office or purpose-it is intended to subserve, have embodied in it every fact or element essential to sustain the plaintiff’s action, nor is it necessary to negative matters of mere defence. It is manifest the instruction in question was not intended, nor does it assume, to enlighten the jury upon the facts necessary to be proved by the plaintiff, in order to recover. An instruction asked for such purpose should, of course, include the hypothesis of ordinary care to avoid-the injury complained of. The sole purpose of the instruction was to tell the jury what the elements of damages were, and which should be taken into consideration by them, in th.e event they found the defendant guilty, and for this purpose we think the instruction was substantially correct. So far as the duty of the plaintiff to exercise due care and prudence in his efforts to be cured of the injuries received by him is concerned, that was purely a matter tending to mitigate the damages, only, and if the defendant desired instructions on that question, it should have asked them. It is further urged, that the instruction is erroneous because it authorizes the jury to assess and allow the plaintiff all such damages as were occasioned or sustained by reason of the injury. It is, in effect, claimed, that the jury would be authorized, under such a charge, to allow the plaintiff damages on account of the injury, although the plaintiff himself had failed to exercise ordinary care. This claim is not well founded. Indeed, there is really no force in it. By the very terms of the instruction the jury are not authorized to make any application of it at all unless they found the defendant guilty, and this they could not do, under the other instructions • given them, without first finding as a fact that the plaintiff was exercising due care when the injury was received. This is fully shown by the following paragraph in plaintiff’s first instruction, which was given to the jury: “Ordinary care, which both plaintiff and defendant were, bound to exercise in this case, is such care as reasonably prudent men would generally exercise under like circumstances, and the want of such care'is negligence.” If the defendant wanted anything more explicit on the subject given to the jury, it was its duty to ask the court for additional instructions. The judgment of the Appellate Court is affirmed. Judgment affirmed.