Star & Crescent Milling Co. v. Thomas

McAllister, J. A rehearing having been granted in this case, we have re-examined it with much care, and given to it all the consideration which the severe pressure of our duties would permit. We shall not attempt to state and discuss all the questions presented on behalf of appellant upon which error is predicated, and since a new trial must'be awarded, we shall refrain from discussing the facts in any way calculated to prejudice either party upon another trial. Under our system, no less now than before the establishment of appellate courts, such as this, the law is for the court, the facts for the jury. After reading all the elaborate arguments, and due.consideration of all the evidence, we are brought to the conclusion that, as respects¡ two of the necessary elements of the cause of action, at least, the evidence is closely conflicting and it is left doubtful which way it preponderates. In such a case it is the well established rule of the Supreme Court that, unless it shall appear that each instruction to the jury on behalf of the successful party stated the law with accuracy and was free from all error calculated to mislead the jury, the judgment must be reversed and the cause sent back for a new trial. L. S. & M. S. R. R. Co. v. Elson, 15 Ill. App. 83, and cases cited; C., B. & Q. R. R. Co. v. Flint, 22 Ill. App. 508, and cases cited. That rule — when applied to a case like this, where, as to indispensable elements of the cause of action, the evidence is conflicting and without any clear preponderance (which are solely matters for the j ury) — is based upon sound reason, and supported by the dictates of evenhanded justice. For, if in such case the instruction improperly assumes any fact in controversy, or erroneously states the law in favor of the plaintiff, it presumptively prejudices the defendant and gives the plaintiff an indirect and undue advantage. The court, at the instance of plaintiff’s counsel, gave to the jury the instruction which is set out in our statement of the case.. That instruction purports to direct the jury as to all the elements necessary to a verdict in plaintiff’s favor. It begins by the assumption of material facts in controversy. “If the jury believe from the evidence that the defendant was possessed of an elevator which was used by its employes in the conduct of its business¡ that the defendant was guilty of negligence in not keeping such elevator and its appliances in an ordinarily safe condition and Hate of repair, and that by reason of such negligence of the defendant, said elevator ran away and fell with the plaintiff while he -was in the performance of his duties as the defendant’s servant, and as such, using said elevator and exercising ordinary care for his own safety as alleged in the declaration,” etc. There is very little in that which the jury would understand to be hypothetical. It is mostly the language of assertion, of assumption of facts. It explicitly assumes that the elevator was used by defendant’s employes in the conduct of its business, leaving it to be inforred that the plaintiff so used it on the occasion in question, which was a matter in controversy at the trial. It assumes that the defendant did not keep the elevator and its appliances in an ordinarily safe condition and state of repair, another point in controversy on the trial. It directs the jury that plaintiff was entitled to recover if he exercised ordinary care for his own safety after he got upon, and was descending by the elevator, while it was claimed on behalf of defendant at the trial, that, upon the facts and circumstances of the case in evidence, it was gross negligence on the part of the plaintiff, who was ignorant of thq proper manner of operating -the elevator, to venture upon and attempt to run it, which would preclude a recovery. That was the true issue, but the instruction withdrew it wholly from the consideration of the jury. That was wrong. P. C. & St. L. R. R. v. Goss, 13 Ill. App. 619. It contains no hypothesis of knowledge on the part of the defendant or want of knowledge on the part of the plaintiff as to the elevator being out of repair, both of which were essential to the cause of action. Beach on Contributory. Neg., 351, and cases in notes. We are also of opinion that third instruction for plaintiff was obnoxious to similar objections. But for giving that above mentioned the judgment must be reversed and the cause remanded Reversed and remanded.