Moody v. Peterson
| Decision Date | 31 March 1882 |
| Citation | 11 Bradw. 180,11 Ill.App. 180 |
| Parties | ALEXANDER MOODY ET AL.v.JOHN PETERSON, Adm'r. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. R. S. WILLIAMSON, Judge, presiding. Opinion filed May 31, 1882.
On the 5th day of June, 1880, Huldah Peterson, the plaintiff's intestate, a child about two and one half years of age, was run over and instantly killed on one of the public streets of the city of Chicago, by a span of horses and wagon of the defendants, in charge of and driven by one of their employes. The plaintiff's action is based on an allegation that the death of said child was caused by the negligence of the driver, while the defendants insist that the parents of the deceased, in permitting her to be upon a public street of the city without suitable attendance or protection, were guilty of contributory negligence of such a degree as to preclude a recovery. There was evidence tending to sustain, and also evidence tending to rebut the charges of negligence on both sides, and the court, at the instance of the plaintiff, gave to the jury, among other instructions, the following:
5. “If the jury believe from the evidence that the defendants, or their servant as driver, were guilty of negligence as explained in these instructions, upon the occasion referred to, and that the deceased was injured thereby as stated in the declaration, and that the persons for whose use this suit was brought have sustained pecuniary loss by reason thereof, and also that the deceased or her parents, or either of them, were guilty of slight negligence which contributed to the injury, and without which the accident would not have happened, still the defendants are liable in this case, provided the jury further believe from the evidence, that the servant or driver of the defendants saw, or by the exercise of reasonable and ordinary care might have seen, the danger to which the deceased was exposed, in time to have avoided it, and by the exercise of ordinary care and prudence might have prevented the injury.
6. If the jury should find from the evidence, that the defendants are guilty of the wrongful act, neglect or default as charged in the plaintiff's declaration, and that the same resulted in the death of the deceased, then the plaintiff is entitled to recover in this action, for the benefit of the next of kin of the deceased, such damages as the jury may deem, from the evidence, a fair and just compensation therefor, having reference only to the pecuniary injuries resulting from such death to such next of kin, not exceeding the amount claimed in the declaration.”
The jury thereupon found the defendants guilty, and assessed the plaintiff's damages at $1,100. And the court, after denying the defendants' motion for a new trial, rendered judgment on the verdict in favor of the plaintiff.
Mr. A. C. STORY and Mr. B. H. VARY, for appellants; that there must be evidence upon which the jury might reasonably and properly conclude there was negligence, cited Cotton v. Wood, 98 E. C. L. 566; Chicago v. Starr, 42 Ill. 178; Toorney v. R. W. Co. 91 E. C. L. 149; Belden v. Innes, 84 Ill. 79.
The parents of deceased were negligent, and this precludes a recovery: Wright v. Malden, 4 Allen, 289; T. W. & W. R. R. Co. v. Gradle, 88 Ill. 441; Chicago v. Starr, 42 Ill. 177; Callaghan v. Bean, 9 Allen, 401.
The plaintiff must be confined to the damages laid in his declaration: Quincy Coal Co. v. Hood, 77 Ill. 75; Baldwin v. R. R. Co. 4 Gray, 336.
Where the evidence is conflicting, each instruction must be correct in itself, without reference to any other: C. & A. R. R. Co. v. Murray, 62 Ill. 331; Wabash R. R. Co. v. Henks, 91 Ill. 413.
The instruction as to comparative negligence is erroneous: Austin v. N. J. Steamboat Co. 43 N. Y. 75; Card v. Harlem R. R. Co. 5 Barb. 130; Phillips v. Wilfress, 2 Lans. 389; Shearman and Redfield on Negligence, § 36.
It is error to single out certain facts, as to what does or does not constitute negligence: St. L. R. R. Co. v. Britz, 72 Ill. 256; Kolb v. O'Brien, 86 Ill. 210; Schmidt v. C. & N. W. R. R. Co. 83 Ill. 408; C. & A. R. R. Co. v. Pennell, 94 Ill. 455; Great Western R. R. Co. v. Haworth, 39 Ill. 349; Penn. Coal Co. v. Conlan, 101 Ill. 107.
The negligence of the parents, in the case of their child, may be imputed to the child: 2 Thompson on Negligence, 1184; Shearman and Redfield on Negligence, § 48; Chicago v. Major, 18 Ill. 349; Chicago v. Gregory, 58 Ill. 226; Chicago v. Starr, 42 Ill. 177; Chicago R. R. Co. v. Becker, 76 Ill. 25; Chicago v. Hesing, 83 Ill. 204; T. P. & W. R. R. Co. v. Grable, 88 Ill. 441; R. R. Co. v. Gladman, 15 Wall. 401; Ihl v. R. R. Co. 47 N. Y. 411.
Messrs. SMITH & BURGETT, for appellee; that the parents of deceased used as much precaution as could be reasonably expected of them, cited Chicago v. Major, 18 Ill. 349; C. & A. R. R. Co. v. Becker, 84 Ill. 483; Chicago v. Hesing, 83 Ill. 204; P. Ft. W. & C. R. R. Co. v. Bumstead, 48 Ill. 221; C. & A. R. R. Co. v. Gregory, 58 Ill. 226.
The driver's negligence was gross compared with that of the child: Kerr v. Forgue, 54 Ill. 482; C. & A. R. R. Co. v. Becker, 84 Ill. 483; Weick v. Lander, 75 Ill. 93.
Where the giving of excessive damages is not assigned for error, it will not be considered by the court: Pro. Life Ins. Co. v. Foote, 79 Ill. 361; Myers v. Andrews, 87 Ill. 433; I. B. & W. Ry. Co. v. Rhodes, 76 Ill. 285; Jackson v. Warren, 32 Ill. 331.
The damages are not excessive: C. & A. R. R. Co. v. Becker, 84 Ill. 483; Chicago v. Scholton, 75 Ill. 468; C. & A. R. R. Co. v. Shannon, 43 Ill. 338; Chicago v. Major, 18 Ill. 349; Chicago v. Hesing, 83 Ill. 204.
The father was entitled to the services of the child, and the law presumes a pecuniary loss; it was not necessary to declare specially for this loss; Chicago v. Scholton, 75 Ill. 468; C. & A. R. R. Co. v. Shannon, 43 Ill. 338; Quincy Coal Co. v. Hood, 77 Ill. 68.
The giving or refusing of mere abstract propositions of law is not error: Ill. Cent. R. R. Co. v. Swearingen, 47 Ill. 206; Ryan v. Donnelly, 71 Ill. 100; Corbin v. Shearer, 3 Gilm. 482; Bandalow v. The People 90 Ill. 218.
The instructions given for appellants fairly presented the law of their case: Walker v. Collins, 37 Ill. 362; Schwarz v. Schwarz, 26 Ill. 91; Twining v. Martin, 65 Ill. 157; Meyer v. Mead, 83 Ill. 19.
Substantial justice has been done and the judgment should be affirmed: Kimball v. Hildreth, 8 Allen, 167; Johnson v. Blackman, 11 Conn. 342; Curtis v. Sage, 35 Ill. 22; Hewitt v. Jones, 72 Ill. 218; Ryan v. Donnelly, 71 Ill. 100; Beseler v. Stephani, 71 Ill. 400; Strohm v. Hayes, 70 Ill. 41; Elam v. Badger, 23 Ill. 498.
The question of negligence in this case being a question of fact, upon which the evidence was conflicting, it became highly important that the jury should be accurately instructed as to the rules of law applicable to that subject. The fifth and sixth instructions given to the jury at the instance of the plaintiff, however, are clearly erroneous, and the judgment must therefore be reversed.
The sixth instruction wholly ignores the question of negligence on the part of the parents of the deceased, and holds that, “If the jury should find from the evidence that the defendants are guilty of the wrongful act, neglect or default, as charged in the plaintiff's declaration, and that the same resulted in the death of the deceased, then the plaintiff is entitled to recover in this action.” The objection to this instruction is too obvious to require comment. There being evidence tending to charge the parents of the deceased with contributory negligence the plaintiff was entitled to recover only in case the jury acquitted them of such charge, or found their negligence slight and that of the defendants gross, in comparison. Other instructions,...
To continue reading
Request your trial