Brunswick v. Strilka

Gary, J. This case presents the question whether a jury shall be sustained in rendering a verdict for the plaintiff on the ground that he needs it, and the defendants can stand it. If there were no other ground for reversing the judgment, it would be reversed because a new trial was not granted for the reason assigned in the motion therefor that the verdict was contrary to the evidence. But, by the modifications by the court of several of the instructions asked by the appellants, the jury were required, as a condition precedent to a verdict for the appellants, to believe from the evidence affirmatively that the deceased came to his death, not by the negligence of the appellants; which is quite a different thing from instructing the jury to find for the appellants unless the jury believe from the evidence that the deceased came to his death by the negligence of the appellants. The evidence might have been so conflicting or confused that the jury could form no belief, either way, upon it, in which case the appellants were entitled to the vei'dict. Watt v. Kirby, 15 Ill. 200. Other instructions asked by the appellant to the effect that, if the deceased came to his death by reason of defects in the machinery of which the deceased had knowledge, or by going into danger that he knew of, the verdict should be for the appellants, were modified, by words that made the carelessness of the deceased a further condition to a verdict in their favor. It is not intended here to pass upon the correctness of the instruction as asked, but only to point out that the modifications imposed upon the appellants the burden of proving the negligence of deceased, and the absence of it in themselves, when, by law,' the burden was on the appellee to prove the negligence of the appellants and the absence of it in the deceased. Some of the instructions commented upon are here inserted, the words in small capitals being those erased, and in italics, those inserted by the court. “If the jury believe from the evidence that the falling of the elevator caused the death of the deceased, and was due to an unavoidable accident, which could not have been foreseen, and not in consequence of the negligence of the defendants as alleged hy the plaintiff in his declaration, then the jury will find the defendants not guilty. “Even if the jury believe from the evidence that the defendants, or some of them, may have been chargeable with negligence, yet if the jury further believe from the evidence that the deceased came to his death in consequence of his not [would hot have come to his death if he had been ih the] exercising of ordinary care and caution, for his safety [then] and not hy and through the carelessness and negligence of the defendants. or either of them,, then the plaintiff can not recover, and the jury should find the defendants not guilty. “ The court instructs the jury that, though they may believe from the evidence that the defendants were guilty of some negligence upon the occasion in question, yet if the jury further believe from the evidence that the deceased was also guilty of an equal [or hearly equal] degree of negligence, directly contributing to his death, and without which it could not have occurred, then the plaintiff can not recover, and the jury should find the defendants not guilty. “Even if the jury believe from the evidence that the elevator and the machinery connected therewith was in a defective condition and in need of repairs, before and at the time of the accident, yet if the jury further believe from the evidence that the deceased knew, or by the exercise of .reasonable care and diligence might have known of such condition of the elevator and the machinery, and that he did,, notwithstanding, proceed to use the elevator in question and manage the same, and that he was injured in consequence of his carelessness and negligence, then the plaintiff can not recover, and the jury should find the defendants not guilty. “The court instructs the jnry that if they believe from the evidence that the bottom of the elevator shaft was a dangerous place to go into; that the deceased was warned by the foreman of Brunswick & Co. to keep off the elevator and to have' nothing to do with it, and that if he, of his own accord, got down into the bottom of the elevator shaft, and that he was hilled in consequence of his own carelessness and negligence, and not that of the carelessness and negligence of the defendants [and that such act of the deceased was the proximate cause of his death], then the plaintiff can not recover, and the jury should find the defendants not guilty.” Some other questions are raised in the case, but it is not necessary to considerthem, as they will probably not arise on another trial. For the errors shown the judgment is reversed and the cause remanded. Reversed cmd remanded.