Chicago & Northwestern Railway Co. v. Thorson

McAllister, J. It seems to be a settled rule of law in this State now, that to enable a plaintiff to recover damages on the ground of mere negligence, as distinguished from the willful tort of the defendant, it must appear that the injured party exercised ordinary care, such as. reasonably prudent persons would exercise under like circumstances, to avoid the injury complained of. C. B. & Q. R. R. Co. v. Johnson, Adm., 103 Ill. 512, arid cases there cited. There was no evidence in this case tending to show any willful tort on the part of the defendant, and it is plain that no such, tort was relied upon as the basis of the action. The cause of action was predicated upon the mere negligence of the defendant. JSTow, as we understand the above rule and its applicability in a case like this, and the other rules relating to the law of negligence, as deduced and announced in the very able and discriminating opinion of Mr. Justice Scholfield in Johnson’s case, supra, the plaintiff herein, in order to maintain her action, was subject to the burden of making it appear from facts and circumstances in evidence that the deceased wras in the exercise of ordinary care to avoid the injury at the time of its occurrence. And we further understand from the Johnson case that, if the deceased was not in the exercise of ordinary care to avoid the injury as above stated, the doctrine of comparative negligence, as formulated by the Supreme Court in this State, will have no "application to the case; since, by the rule first above stated, there could be no recovery on the ground of the mere negligence of the defendant, if the deceased was not in the exercise of such ordinary care to avoid the injury at the time of its occurrence. This rule is to be understood as subject to the condition that there was a proximate connection between such want of care and the injury complained of. The exercise of such care on the part of the deceased was, therefore, an indispensable element of the plaintiff’s cause of action, to be determined by the jury from the relation of the parties, the nature of the situation of the deceased, as respected danger or otherwise, and all the circumstances attending the accident as shown by the evidence. If the exercise of such care on the part of the deceased was an indispensable element of the cause of action, to be so determined by the juiy, then it follows that the question should have been submitted to the jury in any instructions given by the court to the jury, on behalf of the plaintiff, in which the court purported to direct the jury as to what facts, if found by them, would be sufficient in law to warrant a verdict for the plaintiff. The instructions so given for the plaintiff, neither of them contained any hypothesis embracing that question, and were for that reason fatally defective. The second instruction for plaintiff was also erroneous, in that it directed the jury, that if they found that defendant was running its locomotive with a head-light or light on the end thereof, which was foremost as it moved, that would be negligence; that is, it would be negligence if it was run in the manner required by the ordinance set out in the declaration. It is said by appellee’s counsel, that the instruction was so drawn by mistake; and he says, outside of the record, that the word, “ with” was read to the jury “without.” The instruction having been so drawn, marked by the court as given, and thus incorporated into the record, we are not at liberty to listen to any suggestion, that it was read to the jury otherwise than in the very words in which it appears in the record. American v. Rimpert, 75 Ill. 229. Other points for reversal have been discussed by appellant’s counsel, but which we do not deem it necessary to consider. For the errors specified, the judgment must be reversed and the cause remanded. Reversed and remanded.