Garfield Manufacturing Co. v. McLean

McAllister, J. The review of the cases in this State and the discussion which the doctrine of negligence in most of its phases received in the Supreme Court, in the elaborate and carefully prepared opinion of Mr. Justice Seholfield in the recent case of the Calumet Iron and Steel Co. v. Martin, Adm’x, Northwestern Reporter, Vol. 3, p. 456, seem to us to establish beyond doubt or question, the correctness of the proposition that the rule of comparative negligence has no application and can not be properly invoked except in cases where the party injured observed ordinary care with reference to the participar circumstances involved, for his personal safety; that the exercise of such care is an indispensable prerequisite to a right of recovery in any case upon the ground of mere negligence; that having exercised such care, that is, ordinary care, the party injured will not be defeated by mere slight contributory negligence on bis part, if that of the defendant when compared with bis shall be gross. Tested by these rules, the fifth instruction given for plaintiff below, as emphasized by the sixth, was clearly erroneous and misleading. It contains no hypothesis as to the exercise of ordinary care by the plaintiff. Chicago & N. W. Ry. Co. v. Thorson, 11 Bradwell, 631, but invoked and applied the rule of comparative negligence. The evidence being conflicting upon the question of such care, and it being extremely doubtful if it preponderated at all in favor of plaintiff, we would have been compelled to reverse even if the damages had been moderate. Bnt they are not; they are large in proportion to the injury or any fault on the part of the defendants claimed to have caused it. The judgment will be reversed and the cause remanded. Judgment reversed.