Chicago West Division Railway Co. v. Klauber

Bailey, J. The only assignments of error we need consider in this case, are those which relate to the admission of evidence, and to the instructions to the jury. It is insisted that the court erred in admitting in evidence the first and second sections of the ordinance of the city of Chicago, in relation to bridges. Municipal ordinances, like private statutes and the statutes of foreign.States, cannot be judicially noticed, and consequently Whenever they are material to an action or defense, they must be specially pleaded. 1 Chitty’s Plead. 216, 220; Goshen and Sharon Turnpike Co. v. Sears, 7 Conn. 86. In Ill. Cent. R. R. Co. v. Godfrey, 71 Ill. 500, this precise question was decided. „ That was an action to recover for injuries received bv the plaintiff by being run against by a switch engine of the railroad company within the city of Decatur. There was evidence tending to show that the engine was being run at a rate of speed exceeding six miles per hour, and the court, against the objection of the defendant, admitted in evidence an ordinance of the city of Decatur, prohibiting, under a certain penalty, the running of any railroad engine within the corpurate limits, at a greater rate of speed than six miles per hour. As the declaration contained no allegation that there was a city ordinance regulating the speed of engines, it was held that, the admission of the ordinance was erroneous. It is true, that in the second count of the declaration in this case, it is averred that the defendant, “ contrary to a provision of the ordinance of the city of Chicago, ran said car on its journey with great speed and force, so as to be uncontrollable by the brake attached to said car, on to and upon said bridge.” This however is far from being an allegation of the existence of any such ordinance as the one offered in evidence. As laid down by Lord Coke, a private statute must be set out at least with certainty to a common intent. 3 Inst. 303a; Goshen and Sharon Turnpike Co. v. Sears, supra. But here is no attempt to set the ordinance out at all, or to indicate in the slightest degree its substance or the nature of its provisions. The admission of the ordinance in evidence was therefore erroneous. It follows that the defendant’s tenth instruction, by which the court was asked to withdraw from the jury the evidence of the ordinance, should have been given. Evidence was also admitted against the defendant’s objection, showing that the plaintiff was a merchant, and at the time of the injury had an engagement to sell cloaks and wraps for a Mr. Bash, and that if he had not been suffering under the disability caused by the injury, his time as a merchant would have been worth at least $3,000 a year. This evidence was offered for the purpose of showing what the law terms special damages. Damages arising from the negligent acts of a defendant, are either general or special. General damages are such as naturally and necessarily arise, or, in other words, such as the law implies or presumes to have accrued, from the wrong complained of. Special damages are such as really took place, but are not implied by law, and do not necessarily flow from the injurious acts of the defendant. 1 Chit. Plead. 396; Dumont v. Smith, 4 Denio, 319; Olmstead v. Burke, 25 Ill. 86. Whenever the damages sustained have not necessarily accrued from the act complained of, and consequently are not implied by law, then in order to prevent the surprise on the defendant, which might otherwise ensue on the trial, the plaintiff must in general state the particular damage which he has sustained, or he will not be permitted to give evidence of it. 1 Chit. Plead. 396. We do not think the averments of the declaration in this case sufficient to entitle the plaintiff to make proof of special damages. The first count merely alleges that the plaintiff by reason of said injury, was “put to the loss of a business engagement,” and the allegation of the second count is, that he “was hindered and prevented from transacting and attending to his necessary and lawful business, during that time to be transacted, and lost great gains and advantages.” Neither of these allegations points to any damages growing out of or dependent upon the peculiar circumstances or business of the defendant. In Tomlinson v. Derby, 43 Conn. 562, the plaintiff was injured by means of a defect in a highway, and his allegation was, that he was thereby “ prevented from transacting his ordinary business,” and it was held that, under such allegations he could not show that he was earning 0100 a month in carting and sawing timber. So in Taylor v. Monroe, 43 Conn. 36, under a similar allegation, it was held that the plaintiff could not show that she was a button-maker, and what wages she earned in that business. In City of Chicago v. O’Brennan, 65 Ill. 160, the plaintiff brought suit for an injury caused by the falling of a portion of the brick and plastering in the common council chamber of the city. The allegation in the declaration was, that “ the plaintiff, who was pursuing his occupation as journalist,” was injured, etc., “ and thereby the plaintiff, as lawyer, lecturer and journalist, became and was sick, sore, and incapacitated from attending to his business, and so continued for a long time, to-wit, for two months; and as regards plaintiff’s profession as a lecturer, he has been almost wholly, ever since, disabled from pursuing it.” It was held that, under these allegations, the plaintiff could not give in evidence the fact of a particular engagement to lecture in Virginia, and the probable gains thereof. The court say: “ In order to subserve the ends of good pleading, which are to apprise the opposite party of the nature of the claim and prevent surprise, it was necessary that these special damages and the facts on which they were based, should have been set out in the declaration.” The second instruction given to the jury, at the instance of the plaintiff, is clearly erroneous. It holds that, if the plaintiff stood on the platform or step of the car, with consent or knowledge of the conductor, and according to the usual custom on that line, then the plaintiff’s right to recover is not affected by the fact that he stood in such a place, and it is not of itself contributory negligence. It is a principle too familiar to require the citation of authorities, that negligence is a question of fact for the jury. It is the duty of every person to use reasonable and ordinary care to foresee danger and avoid injury, but the precise course of conduct which this rule enjoins, must, ordinarily, from the very nature of things, depend upon the particular circumstances of each case. Whether the plain tiff was negligent in standing on the step or platform, must depend, among other tilings, upon whether there was a vacant seat in the car, of which the plaintiff was aware, and which he might have taken, and whether standing on the platform was more dangerous, than occupying the seat. There was evidence tending to establish both these facts, and if proved, it is very clear that it was the duty of the plaintiff to occupy the seat, as the place of the least danger; and the fact that the conductor knew that he was occupying the more hazardous position, or that it was customary for others to do the same thing, will not • exculpate him from the charge of negligence. The court should have instructed the jury as to the degree of care which the plaintiff was bound to exercise, and then left it for them to determine, whether under all the facts proved, he was guilty of contributory negligence. The plaintiff’s fourth instruction is obnoxious to very much he same criticism as the foregoing. It holds that it was not a want of ordinary and reasonable care on the part of a passenger to stand on the platform of a crowded car, with the consent of the conductor, and according to the usual custom on the line. Tlie sixth instruction ashed by the defendant, we think, should have been given. It lays down the rule that if the plaintiff did not use ordinary care to prevent the injury in question, and that such want of ordinary care produced said injury, he cannot recover, even though the defendant was guilty of gross negligence, unless the injury was willfully inflicted. This instruction is entirely in harmony with the rule of comparative negligence which prevails in this State, and is a correct enunciation of that rule as applied to the state of facts supposed by the instruction. The rule, as- ordinarily formulated, is that slight negligence on the part of the plaintiff, though contributing in some degree to the injury, will not preclude his recovery, if it also appears that the defendant is guilty of contributory negligence of such a degree that, in comparison, the plaintiff’s negligence is slight, and the defendant’s gross. Where, however, the plaintiff is guilty of contributory negligence, of such a degree that it cannot be pronounced slight, he is permitted to recover only in one case, and that is where the injury is willfully inflicted. This is upon the principle that the mere negligence of the plaintiff will not justify the defendant in inflicting upon him an intentional injury. Slight negligence is defined to be the want of great care and diligence. Shear. & Red. on Neg. Sec. 18. The want of ordinary care, then, is manifestly negligence of a higher degree, and in áll the more recent decisions in this State, it has been classed as gross negligence. Thus, in C. B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510, it is held that the omission of all those ordinary and reasonable precautions, which every prudent man would observe for his own safety, is gross negligence. So in C. B. & Q. R. R. Co. v. Lee, Adm’r, 68 Ill. 576, an instruction was asked to the effect that if the deceased failed to exercise that care for his personal = safety which an ordinarily prudent man would do, he could not recover. This instruction was modified by adding, “unless the negligence of the defendant was greater than the plaintiffs.” The court in holding that the instruction should have been given as asked, say: “ there aro and can be no degrees of gross negligence. The cases all go to the length of holding, where a party has been injured for the want of ordinary care, no action will be, unless the injury is willfully inflicted by the defendant. The words added to the instruction plainly informed the jury that the plaintiff could recover, notwithstanding deceased had been guilty of a want of ordinary care for his safety, or even if guilty of gross negligence, if defendant was guilty of greater negligence. On the authority of previous decisions this was error.” In I. C. R. R. Co. v. Hetherington, 83 Ill. 510, the court reiterate the doctrine of the case last cited, and say: “ While the rule is well settled in this State, that a recovery may be had by a party who has been guilty of contributory negligence, where his negligence is slight, and that of the defendant gross, yet the authorties all agree that it is an indispensable element of the right of action in every case, that the plaintiff or parly injured must have exercised ordinary care, such as a reasonably prudent person will always adopt for the security of his person or property.” See, also, C. & A. R. R. Co. v. Becker, 76 Ill. 27; I. C. R. R. Co. v. Green, 81 Id. 19; President, etc. v. Carter, 2 Bradwell, 34. For the errors above pointed out, the judgment wflll be reversed and the cause remanded. Judgment reversed.