Stratton v. the Cent. City Horse Ry. Co..

• Decision Date: 18 May 1880
• Citation: 1880 WL 10004,95 Ill. 25
• Parties: JAMES STRATTONv.THE CENTRAL CITY HORSE RAILWAY COMPANY.
• Court: Illinois Supreme Court

95 Ill. 25

1880 WL 10004 (Ill.)

JAMES STRATTON

v.THE CENTRAL CITY HORSE RAILWAY COMPANY.

Supreme Court of Illinois.

Filed at Ottawa May 18, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Peoria county.

This was an action on the case, brought by appellant against appellee, to recover damages for an injury to the person. The declaration alleged that the defendant negligently and unlawfully so constructed its track upon Adams street, in the city of Peoria, that its rail and superstructure were so raised above the surface of said road as to obstruct and render dangerous the passage of vehicles and public travel across and upon the same; and negligently and unlawfully permitted its tracks so to remain and be run and operated above the surface of said street, whereby public travel was rendered dangerous and obstructed; and that plaintiff, whilst traveling along said street in a wagon, which he was driving, attempted, in the exercise of due care, to cross the said railroad, and by reason of the elevation of said track, through the negligence of said railroad company, he was thrown out of his wagon, and sustained great and permanent injury.

Some of the evidence tended to show that the track in question was from three to six inches above the level of the street, and that plaintiff attempted to cross it with a team and wagon, at an angle of about 45 degrees, at a time when the weather was stormy, and it was snowing; and that while so attempting to cross, and while exercising ordinary care, he was thrown from his wagon by reason of its jolting in consequence of the elevation of the track, and severely and permanently injured.

Other evidence tended to show that the track was about level with the street, and in good condition; and that the injury of plaintiff was the result of his own careless and reckless driving.

There was a trial by a jury, and a verdict and judgment in favor of defendant, from which plaintiff took this appeal. The assignments of error question the rulings of the court below in the admission and exclusion of evidence, the giving and refusing of instructions, and in overruling the motion for a new trial.

The 5th, 11th, 12th, and 27th instructions given for defendant were as follows:

“5th. You are also instructed, that in order to recover in this case it is necessary for the plaintiff to prove, or it should appear from the evidence, that he was not guilty of such negligence in driving and handling his team, at the time of the injury, as would or did contribute materially to cause the injury complained of; and such proof should be made by the plaintiff, or should appear from the evidence to the satisfaction of the jury, or you should find for the defendant. That is to say, the plaintiff, in order to recover, should show not only the negligence of the defendant, as charged, but also that he himself was not guilty of such gross carelessness or negligence as may have brought the blame upon himself, or without which the injury would not have occurred. In other words, he can not recover unless he has shown, or unless it appears by the evidence, that by the exercise of proper care and prudence, under all the circumstances, he could not have averted the injury.”

“11th. It is an essential element to the right of action, in all such cases as this, that the plaintiff or party injured must himself exercise ordinary care, such as a reasonably prudent person will always adopt for the security of his person or property. In case he fails to do so he is guilty of gross negligence, and can not recover. The law is, that where a person is injured for the want of ordinary care, no action will lie, unless the injury is wilfully inflicted by the defendant. This is the rule of law where such caution on the part of plaintiff would prevent the injury complained of.”

“12th. If the plaintiff, by the exercise of ordinary care and reasonable prudence, could have prevented the injury, but did not do so, then he was guilty of gross negligence.”

“27th. If it was reasonably possible for plaintiff, under all the circumstances, to have prevented the injury to himself by the exercise of proper precaution at the time of the injury, as mentioned in the instructions herein, and if such care on the part of plaintiff would have averted the injury complained of, but he failed to exercise such care and was injured, then in such case he was guilty of gross negligence and can not recover, unless he has shown by a preponderance of all the evidence that the defendant wilfully inflicted the injury upon him.”

Messrs. HOPKINS & MERRON, for the appellant:

The appellee's fifth instruction is clearly erroneous. It announces the rule that appellant could not recover unless it appeared by the evidence that he had been guilty of no negligence which contributed materially to the injury. This is a violation of the rule of comparative negligence. The principal cases in which this subject has been considered by this court are these: Galena and Chicago Union R. R. Co. v. Jacobs, 20 Ill. 478; Chicago and Alton R. R. Co. v. Hogarth, 38 Id. 370; Chicago, Burlington and Quincy R. R. Co. v. Triplett, 38 Id. 482; Same v. Payne, 49 Id. 499; Same. v. Same, 59 Id. 534; Chicago and Alton R. R. Co. v. Pondrom, 51 Id. 333; Chicago and North Western R. R. Co. v. Haens, 54 Id. 528; Chicago, Burlington and Quincy R. R. Co. v. Dunne, 61 Id. 385; Indianapolis and St. Louis R. R. Co. v. Stables, 62 Id. 313; Toledo, Peoria and Warsaw Ry. Co. v. Spencer, 66 Id. 528; Illinois Central R. R. Co. v. Moffett, 67 Id. 431; Same v. Benton, 69 Id. 174; Same v. Crain, 71 Id. 177; Toledo, Peoria and Warsaw R. R. Co. v. McGinniss, 71 Id. 346; Illinois Central R. R. Co. v. Hammer, 72 Id. 347; Chicago, Burlington and Quincy R. R. Co. v. Patton, 74 Id. 91; Toledo, Peoria and Warsaw R. R. Co. v. O'Conner, 77 Id. 391; St. Louis, Vandalia and Terre Haute R. R. Co. v. Dunne, 78 Id. 197; Kewanee v. Depew, 80 Id. 119; Sterling Bridge Co. v. Pearl, 80 Id. 251; Rockford, Rock Island and St. Louis R. R. Co. v. Delaney, 82 Id. 198.

Appellee's eleventh instruction states that “it is an essential element to the right of action” that appellant should show that he was in the exercise of ordinary care. This, we claim, is error. That which is essential to a recovery, is that without which there can be no recovery. This instruction is also a violation of the rule of comparative negligence, and takes that question from the jury. Appellant might recover, though he failed in some respects to exercise ordinary care, if his neglect in doing so, when compared with appellee's negligence, bore the relation of slight to gross.

Appellee's twenty-seventh instruction lays down a rule of diligence both untenable and entirely impracticable. It announces that if it was “reasonably possible” for appellant to have avoided the accident, he could not recover. What is meant by a reasonable possibility, and where does it end? The bounds of possibility are indefinitely vast, and the bounds of reason are so great that they have never yet been reached. Messrs. CRATTY BROS. & ULRICH, for the appellee:

It is claimed that our fifth instruction undertakes to decide a question of fact and decides it wrong. Counsel are evidently considering the first part of the instruction, which does not justify the criticism made, but the entire instruction, consisting of three clauses, should be considered together. They are inseparably connected, and no jury could understand them in any other manner, and when considered as a whole it states the law correctly.

We insist the law is very accurately laid down in the eleventh instruction complained of. Want of ordinary care, under the circumstances, is gross negligence, and where there is gross negligence there can be no recovery, unless the injury has been wilfully inflicted. The principle of the eleventh is followed and reasserted in the twelfth, to which latter no exception is taken. The eleventh instruction is sustained in the case of Chicago, Burlington and Quincy R. R. Co. v. Lee, 68 Ill. 576.

What is meant by the words “reasonably possible” in the twenty-seventh instruction is fully and carefully stated by the words following. It is well guarded by apt language and could not mislead or cause error.

As sustaining the theory of the defence and the foregoing, we cite a few authorities: Chicago and Alton R. R. Co. v. Gretzner, 46 Ill. 74; Chicago and North Western Ry. Co. v. Sweeney, 52 Id. 325; Illinois Central R. R. Co. v. Hall, 72 Id. 222; Same v. Hammer, 72 Id. 347; Grand Tower M. and T. Co. v. Hawkins, 72 Id. 386; Illinois Central R. R. Co. v. Goddard, 72 Id. 567; Same v. Benton, 79 Id. 174; Village of Kewanee v. Depew, 80 Id. 119; Toledo, Wabash and...