East St. Louis & Carondelet Ry. Co. v. Frazier

Pillsbuev, P. J. The court held properly in refusing the second instruction asked by defendant for two reasons: First, it contains a direction to the jury to find for [the defendant generally, if they find the one issue of fact in its favor, the condition of the bolt which broke, entirely ignoring the issues made upon the first and second counts of the declaration. The issues were presented whether the bolt was broken by the negligence of the engineer, and if so whether he occupied such a. relation to the plaintiff as constituted them fellow servant; within the rule prevailing in this State. Other issues may be said to be involved which the instruction if given would withdraw from the jury. Second, the principle of the instruction was contained in the first instruction given for the defendant and the court was not required to repeat it. We are compelled to say, however, that the instruction given for the plaintiff, standing as it does alone in the record, while, perhaps, stating the measure of damages in this class of cases properly enough as an abstract proposition of law, should not, under the decisions of our Supreme Court, have been given in the form asked, but should have been modified or refused. The jury are not told by this instruction, or any other in the record, that they should be governed by the evidence in the assessment of damages, an error held fatal in City of Freeport v. Isbell, 83 Ill. 440; Martin v. Johnson, 89 Ill. 537; C., B. & Q. R. R. Co. v. Sykes, 96 Ill. 162; Rolling Mill v. Morrissey, 111 Ill. 646, and others not necessary to cite. It is suggested by counsel that as the jury knew nothing about the damages sustained until they heard the evidence they had no basis for their action except as conveyed to them by the evidence, and to be always reminding them of their duty to be governed in all their findings by the evidence partakes of the character of a reflection u pon their intelligence and integrity. Whatever force there may be in this suggestion we need not stop to inquire as it is effectually disposed of in the decisions referred to, which are binding upon this as well as on the court below. Had the jury been informed of their duty in this regard by any instruction in the case, this objection to it might, perhaps, be considered as obviated. The most serious objection to the instruction, in our view, is that it assumes the existence of the various elements of damages recited in it as constituting the aggregate amount of damages that the plaintiff could recover. Stated in such abstract form, unexplained by any others, it seems to imply that in the opinion of the court the evidence is sufficient to establish that the plaintiff had sustained damages from the .several causes specified, and that the only duty of the jury was to ascertain the amount of each and return the aggregate as their verdict. This instruction may have been the reason of the verdict returned, which is practically admitted by the remittitur to have been one third too large. The instruction shoxxld have been so modified that the jury could not xxndei'stand from it that they might avoid the responsibility of considering the evidence and to detennine therefrom whether the damages claimed had been proven, especially as the evidence creates such uncertainty respecting any permanent injury. We think the cases of Adams v. Smith, 58 Ill. 417; T. P. & W. Ry. Co. v. Patterson, 63 Ill. 304; Wolcott v. Health, 78 Ill. 433, and Wilson v. Bauman, 80 Ill. 493, are in point upon this question, and render the instruction so far erroneous as to require a reversal of the judgment. We do not deem it necessary to discuss the weight of the evidence bearing upon the several issues made, as the casé must be again tried at the circuit, and from some of the instructions given for the defendant, notably the first, we are not sure that the former jury passed upon those1 raised by the first and second counts of the declaration; but for the error indicated the judgment will be reversed and the cause remanded. Judgment reversed.