Chicago, B.&Q.R. Co. v. Levy

• Decision Date: 01 November 1895
• Citation: 160 Ill. 385,43 N.E. 357
• Parties: CHICAGO, B. & Q. R. CO. v. LEVY.
• Court: Illinois Supreme Court

160 Ill. 385

43 N.E. 357

CHICAGO, B. & Q. R. CO.

v.LEVY.¹

Supreme Court of Illinois.

Nov. 1, 1895.

Appeal from appellate court, First district.

Action by Coleman Levy against the Chicago, Burlington & Quincy Railroad Company. A judgment for plaintiff was affirmed by the appellate court (57 Ill. App. 365), and defendant appeals. Reversed.

Chester M. Dawes and Frank O. Lowden, for appellant.

Case, Hogan & Case, for appellee.

PHILLIPS, J.

This was an action on the case, brought by appellee against appellant, for injuries alleged to have been received by him in August, 1891, at Morgan street crossing, in Chicago, by appellant's train coming in collision with his buggy and throwing him out, resulting in his being injured. The first count of the declaration charges negligence in failing to ring a bell or sound a whistle as required by statute, and the second count charges negligence by reason of the gateman failing to lower the gates. A jury in the superior court returned a verdict of $4,500, on which judgment was rendered, and on appeal that judgment was affirmed by the appellate court for the First district. There was a conflict in the evidence as to whether a collision occurred between appellant's train and appellee's buggy, and as to the manner in which appellee was injured, and it is only necessary for us to consider the instructions as given and refused.

The trial court gave to the jury, at the request of the plaintiff below, the following instruction, numbered 5: ‘You are instructed that, although you believe from the evidence that the negligence of the plaintiff contributed to the injury, that will not bar a recovery in this case, provided you further believe from the evidence that the plaintiff used and exercised ordinary care and caution, and that the defendant was guilty of negligence contributing to the injury, and of such degree that, when compared with the negligence of the plaintiff, the negligence of the defendant was gross, and the negligence of the plaintiff, when compared with that of the defendant, was slight.’ This instruction was erroneous. It states that if the defendant was guilty of negligence contributing to the injury, etc., then the plaintiff may recover. There are two counts in the declaration,-one charging a failure to ring a bell or sound a whistle, etc., by reason of which plaintiff was struck by the train, and the other charging neglect of the gateman to lower and close the gates at the crossing, by reason of which plaintiff was struck. No recovery could have been had, except on the negligence charged in the declaration. In Manuf'g Co. v. Ballou, 71 Ill. 417, it appears that an instruction had been given at the instance of the plaintiff which did not restrict the right of recovery to such defects as had been particularly alleged. The court say (page 419): ‘There was evidence given of several defects in the machinery not alleged in the declaration, and the instructions should have confined the right of recovery to the defect specified in the declaration. It is insisted that the error is obviated by other instructions for the plaintiff which predicate the right of recovery on the deceased's having been killed by the defendant's negligence, in manner and form as alleged in the declaration. But, after having been instructed that the plaintiff might recover if the accident was caused by any defect in the machinery, the jury would not feel called upon to search through the various counts of the declaration to find out what particular defects were therein complained of. That would be unimportant, if there could be a...