Cent. Ry. Co. v. Bannister

• Decision Date: 21 February 1902
• Citation: 62 N.E. 864,195 Ill. 48
• Parties: CENTRAL RY. CO. v. BANNISTER.
• Court: Illinois Supreme Court

195 Ill. 48

62 N.E. 864

CENTRAL RY. CO.

v.BANNISTER.

Supreme Court of Illinois.

Feb. 21, 1902.

Appeal from appellate court, Second district.

Action by James Bannister against the Central Railway Company. From a judgment of the appellate court (96 Ill. App. 332) affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.

I. C. Pinkney (J. A. Cameron, of counsel), for appellant.

Stevens, Horton & Abbott, for appellee.

WILKIN, C. J.

Appellee sued appellant in the circuit court of Peoria county to recover damages for personal injuries alleged to have been caused through the negligence of its employ´ployes. He recovered a judgment in that court of $8,400, which has been affirmed by the appellate court.

The defendant operated a double track electric street railway on Washington street, in the city of Peoria. The plaintiff, in attempting to cross that street to his place of business, was struck by one of its cars, thrown down, and so injured that it became necessary to amputate one of his legs below the knee; and he also sustained other injuries. The charge of negligence in the declaration was in running defendant's cars at a high rate of speed, failing to keep a vigilant lookout and to stop the car in the shortest space possible, and failing to sound a gong on the car, as required by the provisions of an ordinance of said city. The defendant filed a plea of the general issue, and the case was tried by jury.

All controverted questions of fact being eliminated from the case, and the only errors of law assigned upon the record being that the trial court erred in giving instructions to the jury on behalf of the plaintiff, and in modifying one of those asked on behalf of the defendant, no further statement of the facts will be necessary.

But three instructions were given on behalf of the plaintiff as to the law of the case, and each of these is objected to as erroneous, in that they leave ‘it to the jury to say whether the facts proven establish the charges in the declaration, and to determine what the specific charges in the declaration are’; also that neither of them requires the plaintiff to make out his case by a preponderance of the evidence. The language of the instructions criticised is to the effect that if the jury believe from the evidence that the defendant was guilty, etc., as alleged in the declaration, or some count thereof, they should find for the plaintiff. It seems to be thought improper to thus refer the jury to the charge of negligence alleged in the declaration. Had the instructions copied the allegations, no objection could have been urged to them. They jury had the declaration before them, and there was no difficulty in their ascertaining, by reference to it, just what the charges of negligence were. The instructions do not refer the question of the materiality of the allegations to the jury, or any other question of law, but simply direct them to look to the declaration for the allegations of due care on the part of the plaintiff, and negligence on the part of the defendant. We have frequently held such instructions proper. In Railway Co. v. Porter, 92 Ill. 437, we said (page 441): ‘The fifth instruction given for the plaintiff is objected to because it tells the jury, if the plaintiff has made out his case as laid in his declaration, they must find for the plaintiff. We do not understand that an instruction of this character makes the jury the judges of the effect of the averments of the declaration, as contended in the argument, but it merely empowers them to determine whether the proof introduced sustains the issues made by the pleadings in the case, and this is clearly within their province.’ To the same effect are Ladd v. Pigott, 114 Ill. 647, 2 N. E. 503Endsley v. Johns, 120 Ill. 469, 12 N. E. 247,60 Am. Rep. 572; and Powder Co. v. Tearney, 131 Ill. 322, 23 N. E. 389,7 L. R. A. 262, 19 Am. St. Rep. 34. We have also held in criminal cases that an instruction which refers the jury to an indictment for a description of the crime alleged is not erroneous. Parker v. People, 97 Ill. 32.Moshier v. Kitchell, 87 Ill. 18, cited and relied upon by counsel for appellant as announcing a different rule, is not at all in point. Under the issues in this case, the burden of proof was undoubtedly upon the plaintiff to prove the material allegations of his declaration by a preponderance of the evidence, but it does not follow that he was required to so announce to the jury in his instructions. ‘It is sufficient if, from all the instructions given to the jury as the charge of the judge, it clearly appears and is stated to the jury upon whom the burden rests.’ Mitchell v. Hindman, 150 Ill. 538, 37 N. E. 916. Instructions are to be considered as a single series, and, when so considered, if, as a whole, they state the law correctly, that is sufficient, even though one or more of them, standing alone, might be erroneous. Lourance v. Goodwin, 170 Ill. 390, 48 N. E. 903. ‘The instructions constitute one charge, and they are not the instructions of either party, but of the court, and the court may group or classify them before submitting them to the jury, as to him may seem proper, in order to best enlighten the jury as to the law of the case.’ Crowell v. People, 190 Ill. 508, 60 N. E. 872. In the case at bar, counsel for appellant, in their discussion of the instructions given on behalf of the plaintiff, ignore entirely those which they requested the court to give and which were given, the first of which told the jury ‘that the plaintiff must prove by the greater weight of evidence in the case that the injury complained of was due to the negligence of the defendant,’ and ‘that the damages and injury complained of was not the result of or contributed to by any negligent act of the plaintiff,’ and, if a person suing to recover damages fails to establish either of such propositions by the greater weight of the evidence in the case, no recovery can be sustained. The thirteenth instruction given at their request is to the same effect.

It is also urged with apparent earnestness that the...