Coursen v. Ely
| Decision Date | 30 April 1865 |
| Citation | 37 Ill. 338,1865 WL 2829 |
| Parties | ABRAM G. COURSENv.EDWARD ELY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Chicago.
Case by the appellee against appellant. Verdict and judgment for plaintiff below for $250. The facts appear in the opinion of the court.
GARRISON & BLANCHARD for appellant.
CHARLES A. DUPEE for appellee. Mr. JUSTICE LAWRENCE delivered the opinion of the court:
This was an action on the case brought by Ely, for injuries to his horse and carriage done by a servant of Coursen, while driving his master's team. The carriage was passing along Clark street, Chicago, and the servant of the defendant below, undertook to pass it with his double team and heavy grain wagon, both vehicles moving in the same direction. A collision occurred, and for the damages resulting therefrom the jury gave the plaintiff a verdict. The evidence is conflicting as to how far the plaintiff may have himself contributed to the accident, or whether it was solely the result of carelessness on the part of defendant's servant. The jury were the proper judges of the degree of credit to be given to the various witnesses, and we find nothing in the record requiring us to set aside the verdict as being unsustained by the evidence.
It is, however, urged that there was error in the instructions. The 4th and 5th instructions given for the plaintiff embody the law of the case as laid down by the court, and it is to these that counsel for plaintiff in error chiefly object. They are as follows:
“If the jury believe from the evidence that the injuries complained of were caused by the negligence or carelessness of the servant of the defendant, in the course of his employment as such servant, either without any negligence or fault on the part of plaintiff's servant; or without any such fault or negligence on his part as contributed to the injuries complained of; or with no want of such care and skill on his part as could reasonably be expected of a man of ordinary prudence and skill in such a situation then they will find for the plaintiff.”
We see no objection to these instructions. If, in cases of this character, the defendant has been guilty of negligence, and the plaintiff has shown all the care and skill which can be expected from men of ordinary prudence in like circumstances, then the plaintiff is entitled to recover. This has been settled by repeated decisions of this court. Aurora Branch R. R. v. Grimes, 13 Ill., 588; Dyer v. Talcott, 16 Ill., 300; Galena & Chicago Union R. R. Co. v. Fay, 16 Ib., 588; Same v. Jacobs, 20 Ib., 496.
On behalf of the defendant the court instructed the jury, “that if they believed the alleged injury to the plaintiff's horse and carriage was produced in whole or in part by the negligence or misconduct of the plaintiff's servant then the jury will find for the defendant.” This was quite as favorable a presentation of the law as the defendant was entitled to, since this court has held in G. & C. R. R. Co. v. Jacobs, 20 Ill., 496, and C. B. & Q. R. R. Co. v. Dewey, 26 Ill., 258, and in several more recent cases, that although the plaintiff may be guilty of some degree of negligence, yet if it is but slight as compared with that of the defendant, the plaintiff shall be allowed to recover, and we have held, at the present term, in the case of the Chicago & Alton R. R. v. Hogarth, that this rule applies even where the slight negligence of the plaintiff in some degree contributed to the injury.
The modification by the court of the defendant's 3d and 5th instructions was in accordance with these principles and unobjectionable.
The objection that the defendant was not permitted to have his motion for a new trial passed upon by all the judges of the Superior Court in banc, even if an erroneous ruling, which we do not decide, is no ground for reversing the judgment, because such ruling worked the defendant no injury. We must presume that that court in banc would have held, as we do, that there was no ground in the record for granting a new trial.
Judgment affirmed.
With reference to the consequences flowing from the implication, in different degrees, of both the plaintiff and the defendant, in the negligence which has produced an injury, there are said to be three theories or conditions of negligence, viz: that of comparative negligence, which is the doctrine of the above, and all other Illinois cases since Galena & C. U. R. R. Co. v. Jacobs, 20 Ill., 478; that of contributory negligence, which is the doctrine of all the States except Illinois and Georgia, and that of concurrent negligence, which applies in proper cases simultaneously with either of the others. For a review of the decisions of the Illinois Supreme Court upon the doctrine of
I. COMPARATIVE NEGLIGENCE, i. e., that the plaintiff may recover, notwithstanding his own negligence contributed to the injury, provided his own negligence was slight, and the negligence of the defendant gross; see C. & N. W. R. R. Co. v. Sweeny, 52 Ill., 330.
Since that time the following cases have been decided under this head without varying the conclusion, viz: C. & A. R. R. Co. v. Fears, 53 Ill., 115, and I. C. R. R. Co. v. Slatton, 54 Ill., 133. The negligence of the plaintiff having been greater than that of the defendant in both cases, there was no liability. In Kerr v. Forque, 54 Ill., 482, the same principle was affirmed and a recovery justified on the ground that the negligence of the defendant was much greater than that of the plaintiff.
Where gross negligence is equally shown by the parties, the plaintiff, as a rule, cannot recover for injuries received. I. C. R. R. v. Baches, 55 Ill., 379; Chicago & A. R. R. Co. v. Garvey, 58 Ill., 83.
A horse was left on the street unfastened; in repairing telegraph wires a broken wire hit the horse and made him run away: Held, the negligence of the driver was greater than that of the telegraph company. West. Un. Tel. Co. v. Quinn, 56 Ill., 319.
An employee at work on a railroad was suddenly warned off by the brakeman of an approaching train; he jumped across to the track of another railroad, and was run over by two cars, detached from the main train, noiselessly moving down on him from the same direction as the first named train, the two cars being in charge of no person: Held, the company owning the second road upon which the injury occurred, was more negligent than the employee. C. R. I. & P. R. R. Co. v. Dignan, 56 Ill., 487. See also, C. & A. R. R. Co. v. Garvey, 58 Ill., 83.
Where plaintiff receives an injury occasioned by his own negligence, he cannot recover. City of Aurora v. Pulfer, 56 Ill., 270; City of Centralia v. Krouse, 64 Ill., 19.
Where stock is killed on a railroad, and the engineer could, by the use of ordinary care and skill, without danger, have stopped the train in time to avoid the collision, although the animals were wrongfully on the track, the company is nevertheless liable. T., P. & W. R. W. Co. v. Bray, 57 Ill., 514; Same v. Ingraham, 58 Ill., 120; Paris & D. R. R. Co. v. Mullins, 66 Ill., 526.
The negligence of plaintiff being slight compared to that of defendant, the former can recover for injuries caused by the negligence of the latter. 58 Ill., 272; 61 Ill., 385; 62 Ill., 313; Same, 326; 66 Ill., 528; 67 Ill., 431.
Plaintiff is not required to be free from negligence. 59 Ill., 534; 61 Ill., 385; 62 Ill., 326.
At this point there is a tendency to restrict the latitude to which the doctrine of comparative negligence had been carried; witness the following:
To render defendant liable, there must be negligence...
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