Neuerberg v. Gaulter

• Decision Date: 31 May 1879
• Citation: 4 Ill.App. 348,4 Bradw. 348
• Parties: PETER NEUERBERG ET AL.v.MARY GAULTER.
• Court: United States Appellate Court of Illinois

4 Ill.App. 348

4 Bradw. 348

PETER NEUERBERG ET AL.

v.MARY GAULTER.

Appellate Court of Illinois, Third District.

May Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McLean county; the Hon. OWEN T. REEVES, Judge, presiding. Opinion filed October 2, 1879.

Messrs. STEVENSON & EWING, Messrs. GASPER & EWING, and Mr. B. D. LUCAS, for appellant; contending that although the deceased may have been intoxicated, yet, if his death was caused by the negligence of the railroad company, the plaintiff cannot recover in this action, cited Shugart v. Egan, 88 Ill. 57; Schmidt v. Mitchell, 84 Ill. 195; Tweed v. Ins. Co., 7 Wall, 44; Wharton on Negligence, § 134.

Messrs. BLOOMFIELD & HUGHES, for appellee; that no assignment in error of the verdict being against the evidence being made, it cannot be urged here, cited Townsend v. Briggs, 1 Scam. 472; Jackson v. Warren, 32 Ill. 331.

Erroneous instructions, that are cured by others, will not reverse: Van Buskirk v. Day, 32 Ill. 260; Chicago v. Hesing, 83 Ill. 204; Lawrence v. Hagerman, 56 Ill. 68; Hardy v. Keeler, 56 Ill. 152.

DAVIS, P. J.

Action on the case commenced by appellee under the “Dram-shop Act,” to recover damages for an injury to her means of support, by the killing of her husband on the track of the Chicago and Alton Railroad, while intoxicated by liquor sold to him, as alleged, by some of the appellants.

The law under which this action was brought, provides that every wife who shall be injured in person or property or means of support in consequence of the intoxication of any person, shall have a right of action in her own name, severally or jointly, against any person or persons who shall, by selling or giving intoxicating liquors, have caused the intoxication, in whole or in part, of such person. Sec. 9 of chapter 43, page 433, Revised Statutes of 1877.

The evidence on the trial below was very conflicting as to the fact of the intoxication of the husband of appellee, and where there is a conflict of evidence, or where it leaves it doubtful which way the jury should find, the instructions given by the court should accurately state the law. Volk et al. v. Roche, 70 Ill. 297; T. W. & W. R. W. Co. v. Corn et al. 71 Ill. 493. The law gives the remedy only where the injury is the consequence of the intoxication of the person, and it gives it against every person or persons who shall have caused that intoxication in whole or in part, and the law should have been so given to the jury. But the court below, in appellee's second instruction, informed the jury that “If the plaintiff has proven by the evidence before you, to your satisfaction, that William Gaulter drank intoxicating liquors received from any or either of the defendants, and in consequence of...