Hayward v. John A. Merrill.

• Decision Date: 31 January 1880
• Citation: 34 Am.Rep. 229,94 Ill. 349,1880 WL 9953
• Parties: JOHN A. HAYWARDv.JOHN A. MERRILL.
• Court: Illinois Supreme Court

94 Ill. 349

1880 WL 9953 (Ill.)

34 Am.Rep. 229

JOHN A. HAYWARD

v.JOHN A. MERRILL.

Supreme Court of Illinois.

January Term, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Third District; the Hon. CHAUNCEY L. HIGBEE, presiding Justice, and Hon. OLIVER L. DAVIS and Hon. LYMAN LACEY, Justices. On an appeal from the Circuit Court of Christian county; the Hon. W. R. WELCH, Judge, presiding.

Mr. ANTHONY THORNTON, for the appellant:

1. In ordinary trials, and in the absence of proof of malice or wilful misconduct, the rule of law is, that damages are to be awarded as a compensation for the injury received. They should be precisely commensurate with the injury, neither more nor less, and this whether it is to the person of the plaintiff or his estate. Greenlf. Evi. sec. 253.

Juries may give exemplary or punitive damages in cases of wilful negligence or malice, but it is requisite such a case should be made. Peoria Bridge Association v. Loomis, 20 Ill. 251; Chicago and Rock Island Railroad Co. v. McKean, 40 Id. 235.

The testimony in this case wholly fails to disclose any malice or wilfulness. Wilful, means “willing, done or suffered by design.” The verdict was for $2000. No bones were broken, and no serious injury, apparent to the eye of the surgeon, was inflicted.

2. The court erred in the instructions. The second was calculated to mislead, in informing the jury that negligence may consist of nonfeasance, and in making no reference to the due caution of the plaintiff, an averment in the declaration, and material to be proved. The proof shows negligence amounting to recklessness on the part of the plaintiff. Under such circumstances, it is not the law that “unintentional mischief” is sufficient to create a liability. In such case the acts of the party sought to be charged must be “wilful, wanton or so gross as to amount to recklessness.” Toledo, Wabash and Western Railway Co. v. McGinnis, 71 Ill. 347.

It is no answer that other instructions in the series may have corrected the error. Chicago, Burlington and Quincy Railroad Co. v. Payne, 49 Ill. 499; Chicago, Burlington and Quincy Railroad Co. v. Lee, 60 Id. 502; Illinois Central Railroad Co. v. Maffit, 67 Id. 431; Chicago, Burlington and Quincy Railroad Co. v. Harwood, 80 Id. 91.

The court has no right to specify the particular act which might constitute ordinary care, as in the fourth of plaintiff's instructions. The court only has the right to instruct the jury that the defendant must use ordinary care, but the particular acts which constitute such care must be determined alone by the jury. Schmidt v. Chicago and Northwestern Railroad Co. 83 Ill. 408; City of Freeport v. Isbell, Id. 443.

3. The having the “elevator hole” was not per se negligence. Trap-doors, hoistways and similar openings in floors are a useful and necessary part of the machinery of business, etc., and the mere fact of their existence and use is no evidence of negligence. Sherman on Neg. sec. 508.

Negligence is the omission of the means reasonably necessary, not absolutely necessary, to avoid injury to others. Chicago, Burlington and Quincy Railroad Co. v. Stumps, 55 Ill. 374.

The defendant was not required to foresee and provide for every possible danger. City of Chicago v. Bixby, 84 Ill. 85; Murray v. McLean, 57 Id. 382.

4. When both parties are equally in the position of right, the plaintiff, to recover, must show that the injury was produced by the negligence of the defendant, and that the plaintiff exercised ordinary care to avoid the injury. Aurora Branch Railroad Co. v. Grimes, 13 Ill. 587.

Where the injured party has acted with a slight degree of negligence contributing to the injury, to recover he must show that the other party has been guilty of gross negligence. Chicago, Burlington and Quincy Railroad Co. v. Denny, 26 Ill. 258; Chicago and Alton Railroad Co. v. Gretzner, 46 Id. 82; Illinois Central Railroad Co. v. Benton, 69 Id. 179.

If one party be guilty of contributory negligence, the other party must be guilty of gross negligence amounting to wilful injury. St. Louis, Alton and Terre Haute Railroad Co. v. Todd, 36 Ill. 414; City of Chicago v. Smith, 48 Id. 109; Wilkinson v. Fairrie, 2 Am. L. R. (N. S.) 242; Chicago, Burlington and Quincy Railroad Co. v. Lee, 68 Ill. 580; Toledo, Wabash and Western Railway Co. v. McGinnis, 71 Id. 348; Chicago and Northwestern Railroad Co. v. Cass, 73 Id. 397. Mr. S. W. MOULTON, and Mr. J. W. KITCHELL, for the appellee:

1. The damages are not excessive, but are less than the evidence would have warranted.

The court will not disturb a verdict unless it is apparent at first blush that the damages are glaringly excessive. McNamara v. King, 2 Gilm. 432; Northern Line Packet Co. v. Binninger, 70 Ill. 580; City of Peru v. French, 55 Id. 317.

As to whether the damages were excessive, counsel cited Chicago and Alton Railroad Co. v. Murray, 71 Ill. 601; City of Chicago v. Elzman, Id. 131; City of Ottawa v. Sweely, 65 Id. 434; Chicago and Alton Railroad Co. v. Gregor, 58 Id. 226; Pittsburg, Cincinnati and St. Louis Railroad Co v. Thompson, 56 Id. 138; Chicago and Alton Railroad Co. v. Pondrum, 51 Id. 333; Illinois Central Railroad Co. v. Evert, 74 Id. 399.

2. Counsel argued, from the facts, which they reviewed, that the plaintiff was not guilty of negligence in his falling through the hoistway, knowing nothing of the locality of the room in which it was, and contended that the defendant was guilty of gross negligence in leaving the door to the room unfastened and unlighted.

3. It is the duty of an inn keeper to see that guests and their property are properly and safely cared for, and that neither shall be exposed to danger; and where an injury is sustained to either, the burden of proof is upon him to show the injury or loss was without his fault. Metcalf v. Hess, 14 Ill. 129; Johnson v. Richardson et al. 17 Id. 302.

As to the duty of the occupier of premises to protect guests and customers rightfully upon the same, counsel cited Bigelow's Cases on the law of Torts, 704-706; Ellicott v. Pray, 10 Allen, 378; Carleton v. Franconia Iron Co. 99 Mass. 216; Wendall v. Baxter, 12 Gray, 494; Buckingham et al. v. Fisher, 70 Ill. 125.

Negligence is a question of fact for the jury. Schmidt v. Chicago and Northwestern Railroad Co. 83 Ill. 405. The rule of comparative negligence is well established in this State, and where there has been negligence of both parties still the plaintiff may recover when his is slight and that of the defendant gross in comparison. Chicago, Burlington and Quincy Railroad Co. v. Van Patten, 64 Ill. 510; Chicago and Northwestern Railroad Co. v. Sweeney, 52 Ill. 325.

It was not necessary to show wilful injury on the part of the defendant, or that his negligence was wilful.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This action was brought by John A. Merrill against John A. Hayward, to recover for personal injuries. Plaintiff was a guest at a hotel kept by defendant. Adjoining the room assigned to plaintiff, and on the same side of the hall, was a door nearly or exactly like the room door, and only two and one-half feet distant, that opened to an “elevator” opening from the second floor to the cellar of the hotel building. Gas was burning in the hall on the same floor where the room plaintiff was to occupy was situated, but not very brightly. The rooms on either side of the hall were numbered with white figures about one inch in length, and could no doubt be read by the light in the hall by any one intent on observing them. The room plaintiff was to occupy was numbered on the door “38,” and the door to the elevator opening was numbered, in the same way, ““40.” The doors had the same trimmings,--the knobs on them being exactly alike. Both doors had locks and keys, but neither of them seems to have been locked on the night of the accident to plaintiff. The door to the “elevator” opening was hung on the outside of the jams and even with the surface of the hall, and opened out into the hall, while the door to the bed-room set in the usual distance and opened into it. Room “38” was the last one on the left-hand side of the hall, being a corner room. Two sides of the “elevator” opening were inclosed by plastered walls of this room. Having recently been a guest at the house, and having occupied room ““38,” which was now assigned him, plaintiff believed he knew the location of the room, and could readily find it without the assistance of the bell-boy that had been directed, by the clerk in the office, to show him to his room. After discharging the bell-boy, he proceeded as he supposed to room “38,” being the last...