Pioneer Fireproof Construction Co. v. Sunderland

Mr. Justice Hand delivered the opinion of the court: This is an action brought by appellee, against appellant, to recover damages for an alleged personal injury. Appellee recovered a judgment against appellant in the circuit court for §2000, which has been affirmed by the Appellate Court for the Second District, and this appeal has been prosecuted to this court to reverse such judgment of affirmance. The appellant owns a factory in the city of Ottawa for the manufacture of fire-proof materials, and uses therein clay obtained at pits located upon the opposite side of Pox river, which is transferred to the factory in cars upon a tram-way owned by it, which are propelled by a motor operated by electricity. The tram-way crosses the river upon a bridge 18 feet wide and 237 feet long, upon Main street, within the city. On the 25th day of May, 1896, a train belonging to appellant, consisting of a motor car and two cars attached thereto, loaded with clay, was going west. At the same time appellee, in company with a neighbor named Clayton, was going east, driving a horse hitched to a top buggy. As he drove upon the west end of the bridge said train came upon the east end thereof. The horse showing signs of fright, appellee stopped him, gave the lines to Clayton, got out of the buggy and went to his head and attempted to control him. The train, as it approached, made a hissing, rumbling noise, which greatly excited and frightened the horse. The horse was in plain view of the motorman, and appellee claims he waved his hand and called to the motorman to stop the train; that the train did not stop, but as it passed him more electricity was turned on and the noise increased; that the horse became unmanageable and ran away; appellee was thrown down and severely injured, his collar-bone, leg and elbow-joint being broken. The declaration contains several counts, some of which charge negligence, and others wanton and willful misconduct on the part of the agents of appellant in charg'e of the train. The appellant complains that the court improperly modified its instructions before giving the same to the jury, by incorporating therein the doctrine of comparative negligence. No instructions were given on behalf of appellee, but the eleven instructions given on behalf of the appellant, when taken as a whole, plainly told the jury that before the appellee was ehtitled to recover he must establish by the evidence that he was in the exercise of ordinary care for his own safety and protection at the time of the injury, and that if he was injured by reason of his own negligence he could not recover. We are of the opinion that the instructions, when considered as a whole, were not misleading, that the jury were fairly instructed as to the law of the case, and that the error complained of does not constitute reversible error. In the case of Chicago and Alton Railroad Co. v. Matthews, 153 Ill. 268, in passing upon a series of instructions very similar to those given in this case, on page 269 we say: “It was not reversible error to instruct the jury in regard to the doctrine of comparative negligence, — and especially so since it was so explained as to amount to no more than laying down the rule that in order to entitle the plaintiff to recover he must prove that he exercised due care to avoid the injury.” And in the case of Wenona Coal Co. v. Holmquist, 152 Ill. 581, on page 592 it is said: “Plaintiff’s first instruction, although unnecessarily announcing the now obsolete doctrine of comparative negligence, is not inconsistent with the five instructions of the defendant, which require the exercise of ordinary care as a condition to the right of recovery, and when it is read in connection with such instructions it could not have misled the jury. This view is sustained by the following decisions of this court: Willard v. Swansen, 126 Ill. 381; Chicago, Burlington and Quincy Railroad Co. v. Warner, 123 id. 38; Village of Mansfield v. Moore, 124 id. 133; Calumet Iron and Steel Co. v. Martin, 115 id. 358; Chicago, Burlington and Quincy Railroad Co. v. Johnson, 103 id. 512; Chicago and Alton Railroad Co. v. Johnson, 116 id. 206. ” It is further assigned as error that the court instructed the jury orally in respect to visiting the scene of the accident or examining the location, ii appears from the abstract: “The hour for adjournment having arrived, the court instructed the jury orally, as follows: “The court: ‘Observing the other suggestions made to you, I will say, also, that it would be improper for you to examine this location except by agreement of counsel, and then in charge of an officer; so that you will keep away from the location where 'this accident occurred, unless it be agreed by counsel that you go in a body to see it.’” In our opinion what was said by the court to the jury on that occasion was not an instruction by the court as to the law of the case; that it amounted only to a direction to the jury as to the manner in which they should conduct themselves during the time of adjournment and while out of the presence of the court, and was not improper. Illinois Central Railroad Co.v. Wheeler, 149 Ill. 525. The court admitted certain testimony offered by appellee, concerning the disposition of the horse, which was objected to b^ appellant on the ground that the witnesses were persons without experience in handling horses and incompetent to testify upon that subject. Two of them were women who had driven the horse a number of times, and the others were men who had either driven it or seen it frequently, one of them being a former owner. The knowledge of these witnesses as to the disposition of the horse covered a period of time prior and up to the time of the accident, and this evidence was clearly competent and proper, the weight or value thereof being left for the consideration of the jury. ' Finding no reversible error in this record, the judgment of the Appellate Court for the Second District will be affirmed. Judgment affirmed.