Tri-City Railway Co. v. Gould

Mr. Justice Magruder delivered the opinion of the court: The judgments in this case must be reversed for error in giving the second and seventh instructions, given for appellee, as the same are set forth in the statement preceding this opinion. The second instruction is erroneous, because it does not limit the degree of care, required of the carrier, to such care as is consistent with the practical operation of the road. In other words, that part of the second instruction, which told the jury, that “the defendant, through its servants in charge of such car, was required to do all that human care, vigilance and foresight could reasonably do, in view of the character and mode of conveyance adopted, to safely carry him as such passenger,” should have read as follows: “The defendant, through its servants in charge of such car, was required to do all that human care, vigilance and foresight could reasonably do, in view of the character and mode of conveyance adopted, and consistently with the practical operation of the road, to safely carry him as such passenger.” Such was the holding of this court in North Chicago Street Railroad Co. v. Polkey, 203 Ill. 225. The seventh instruction was condemned in Keller v. Hansen, 14 Ill. App. 640, and Johnson v. Farrell, 215 Ill. 542. The judgments of the circuit and Appellate Courts are reversed, and the cause is remanded to the former court for further proceedings, not inconsistent with the views herein expressed. Reversed and remanded.