Chicago & Alton R. R. Co. v. Murray

• Decision Date: 31 January 1872
• Citation: 1872 WL 8044,62 Ill. 326
• Court: Illinois Supreme Court
• Parties: CHICAGO & ALTON R. R. CO.v.ELLEN MURRAY.

62 Ill. 326

1872 WL 8044 (Ill.)

CHICAGO & ALTON R. R. CO.

v.ELLEN MURRAY.

Supreme Court of Illinois.

January Term, 1872.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McLean County; the Hon. THOMAS F. TIPTON, Judge, presiding.

The court gave the following instructions at the request of the appellee:

1. The jury are instructed by the court, on behalf of the plaintiff, that the defendant is liable for the misconduct, wrongful acts, negligence, or default of all or any of its officers, agents, servants, or employees, when proved, acting in the line of its business or employment.

2. The jury are further instructed, that Ellen Murray had a lawful right to be upon Chestnut Street, and to cross the defendant's railroad at any point where said railroad crossed Chestnut Street; and if the jury believe, from the evidence, that Chestnut Street was a public highway, and that Ellen Murray, while in the exercise of this lawful right was injured by the wrongful act, negligence, or default of the defendant, or its servants, then they will find for the plaintiff.

3. The jury are further instructed for the plaintiff, that while the person injured is bound to use reasonable care, yet she is not held to the highest degree of precaution of which the human mind is capable, and to recover, she need not be wholly free from negligence if the other party has been culpable. Therefore, in this case, even if the jury believe, from the evidence, that Ellen Murray was guilty of slight negligence, yet, if they believe, from the evidence, that the defendant was guilty of gross negligence, and that the negligence of Ellen Murray was slight compared with the negligence of the railroad company, then they will find for the plaintiff, and assess her damages at such sum as, under the evidence, they believe her entitled to, not exceeding ten thousand dollars.

4. The court further instructs the jury for the plaintiff, that if they believe, from the evidence, that the fireman on the locomotive engine, which struck down and ran over Ellen Murray (if they believe from the evidence, she was struck down and run over), could, by the exercise of reasonable care and watchfulness, have seen the plaintiff in time to have stopped said engine and prevented injury to her, then the railroad company is liable for the want of care and watchfulness of said fireman, and for any injury which was occasioned by such want of care or watchfulness.

5. The court further instructs the jury that care and negligence are relative, and that the question of liability does not depend absolutely upon the absence of all negligence on the part of the plaintiff, but upon the relative degree of care, or want of care, as manifested by both parties, that in proportion to the negligence of the defendant should be the degree of care required of the plaintiff; that is to say, the more gross the negligence manifested by the defendant, the less will be the degree of care required by the plaintiff to enable her to recover. The plaintiff need not be wholly without fault, but her fault is to be measured by the defendant's negligence. Therefore, in this case, although the jury may believe that Ellen Murray may not have been wholly without fault, yet if they believe, from the evidence, that the defendant has been guilty of gross negligence, and that the negligence of the plaintiff was slight compared with the negligence of the defendant, then they will find for the plaintiff.

6. The jury are further instructed by the court, that in estimating the damage to the plaintiff, in this case, if any, they have a right to take into consideration the personal injury inflicted upon her, the pain and suffering undergone by her, and any permanent injury sustained by her, if the jury believe, from the evidence, that the plaintiff sustained such injuries. 7. The court instructs the jury that they are the sole judges of the facts in this case, and of the credit to be given to the respective witnesses who have testified, and in determining or weighing the evidence of such witnesses, the jury have a right to take into consideration the motives, feeling, and interest of such witnesses so testifying, if any.

8. The court further instructs the jury, that it was the duty of the engineer and fireman, operating and controlling a locomotive engine in approaching or crossing a public street or highway, to keep a careful watch or look-out ahead of said engine, to prevent injury to persons and loss of life. And if the jury believe, from the evidence, that James Taylor, the fireman upon the locomotive engine which injured the plaintiff--if the jury believe from the evidence she was injured--was in a position where he could have seen the plaintiff, that there was nothing to intercept his view--if he had exercised reasonable care and prudence, and could thereby have prevented the injury, the defendant is liable for the negligence of said fireman, if they believe, from the evidence, he was guilty of negligence.

The jury found the defendant guilty, and assessed the plaintiff's damages at $7,000. The court overruled a motion for a new trial, and rendered judgment on the verdict. Defend...