Springfield Consolidated Railway Co. v. Sommer

Mr. Presiding Justice Wall delivered the opinion of the Court. The appellee recovered a judgment against the appellant for having negligently caused the death of the said Frederick bf. Sommer. ' The declaration contained six counts, of which the third and fourth were deemed bad, and the jury were instructed to disregard them. The counts remaining, charged the defendant with negligence in the. managemant of its cars, which were propelled along a public street in the city of Springfield by electricity, and that thereby the deceased, who was in the exercise of due care, was run over and received fatal injury. The negligence alleged was in running at a dangerous rate and in not giving notice of the approach of the cars. It was alleged that deceased was in the exercise of due care. We have carefully considered the case made by the proof and find that, to say the least, it is very close upon both material points, viz., the alleged negligence of the defendant and the alleged care of the deceased. Whether the speed was so high as to be negligent under the circumstance and at the place of collision, and whether the proper notice of approach was given, were questions for the jury, upon which depended the right of recovery, if the deceased was duly careful. These questions should have been left to the jury without any intimation from the court as to its opinion. The first, second and third instructions given for the plaintiff were seriously at fault in assuming that the matters therein mentioned constituted negligence on the part of defendant. Whether so or not was for the jury and not for the court. It is familiar in this State that the court should not instruct the jury that certain acts or omissions ar%.per se, negligence, unless so declared by statute. In this instance the matters referred to were the alleged high and dangerous rate of speed and the alleged omission to keep a sufficient lookout, and to keep control of the car so that it could be stopped in time to avoid injury. In argument, the appellee, realizing the force of the objection, insists that the fault, is cured by the instructions given for appellant, and that on the authority of Willard v. Swan-sen, 126 Ill. 381, the judgment should not be reversed for this reason. An examination of the entire series has led us to the conclusion that the fault is not so cured, and that the jury were probably misled. We are of opinion, also, that the fifth instruction is erroneous- in that it singles out and calls undue attention to the evidence as to “the manner and place in which the cars of defendant had passed each other on the switch before the killing of Sommer.” On the whole, we think the case should be tried again. The judgment will therefore be reversed and the cause remanded.