Pittsburgh, Cincinnati & St. Louis Railway Co. v. Shannon

Bailey, J. The first instruction given for the plaintiff, as the same appears in the transcript of the record, could only have had a tendency to confuse and mislead the jury. Counsel for the appellee suggest that the clerk of the court below, in transcribing the instruction, omitted the word “ or ” before the words “ had such a flagman,” and that we should read the instruction as though that word were supplied. It is a sufficient answer to the suggestion to say, that we are bound by the record as transmitted to this court. If it has been erroneously transcribed, it was within the power of the party prejudiced by such error, at any time before the final hearing, to suggest a diminution of the record and have the error corrected by an amended transcript from the court below. Having failed to do this, the appellee is precluded from insisting that the instruction does not appear in the record precisely as it was given to the jury. The plaintiff’s second instruction fails to state the rule of comparative negligence with entire accuracy. In Quinn v. Donnovan, 85 Ill. 194, the court say: “ The rule, as has often ' been said by this court, is, a plaintiff may recover where his negligence is slight as compared with the defendant’s, which is gross.” So in I. C. R. R. Co. v. Hammer, 85 Ill. 526, it is said: “The rule has often been laid down, that where a plaintiff has been guilty of negligence contributing to the injury, he can not recover, unless the negligence of the defendant is gross, and not then, unless the negligence of the plaintiff is slight in comparison with that of the defendant.” The rule is stated in substantially the same language in C. & N. W. Ry. Co. v. Dimick, 96 Ill. 42, and in numerous other cases to which reference might be made. It must not only appear, then, that the defendant’s negligence-is gross and that of the plaintiff but slight, but that they are so when compared with each other. Bee Moody v. Peterson, ante. In the statement of the rule in the plaintiff’s instruction, the element of comparison is omitted, and in that respect it fails to state the rule correctly. The question of the comparative negligence of the parties was one of the leading questions in the case, and it should therefore have been accurately submitted to the j™7-' The plaintiff’s fourth instruction was erroneous in so far as it submitted to the jury the question of permanent injury to the plaintiff, there being, as it seems to us, no evidence tending to show permanent injury. The only witness who testified to the nature and extent of said injuries was the plaintiff himself; and while his evidence tends to show that, at the time of the trial, he was still suffering some pain and weakness consequent upon the injury, it nowhere appears that his ailments are of such a nature that he is not likely to recover from them, and no witness ventures an opinion that -they are or will be permanent. The jury, however, may have concluded that, in the opinion of the court, there was' sufficient evidence to warrant a finding on that subject. Instructions which submit to the jury questions of fact upon which there is no evidence, have been uniformly held to be erroneous. As the case must be submitted to another jury, we forbear discussing the questions of fact elaborately argued by counsel, but for the errors in the foregoing instructions the judgment will be reversed and; he rouse remanded. Judgment reversed.