North Chicago St. R. Co. v. Louis

• Decision Date: 13 May 1891
• Citation: 27 N.E. 451,138 Ill. 9
• Parties: NORTH CHICAGO ST. R. CO. v. LOUIS.
• Court: Illinois Supreme Court

138 Ill. 9

27 N.E. 451

NORTH CHICAGO ST. R. CO.

v.LOUIS.

Supreme Court of Illinois.

May 13, 1891.

Appeal from appellate court, first district.

Wm. B. Keep and Edmund Furthmann, for appellant.

Kraus, Mayer & Stein, for appellee.

MAGRUDER, J.

This is an action brought by the appellee against the appellant company in the superior court of Cook county to recover damages for a personal injury. The trial resulted in a judgment in favor of the plaintiff, which has been affirmed by the appellate court. The court below refused to give any of the instructions asked by either party, and, in lieu thereof, gave one of its own motion. In two of the instructions asked by the defendant it was stated to be the law that the burden of proof was upon the plaintiff to prove her case as alleged in the declaration, and that she must prove, by a preponderance of all the evidence, that she was, at the time of the accident complained of, exercising ordinary care and prudence for her own safety. Each count of the declaration averred that she was ‘exercising all due care and diligence on her part.’ The propositions of law embodied in the instructions, as above set forth, were correct. In such actions as this the burden of proof is always held to be on the plaintiff to show that he was himself exercising ordinary care and diligence at the time the accident happened. It is also a requirement of the law that, in civil cases, the plaintiff must prove his case by a preponderance of the evidence. Railroad Co. v. Grimes, 13 Ill. 585;Dyer v. Talcott, 16 Ill. 300; Railroad Co. v. Hazzard, 26 Ill. 373;Kepperly v. Ramsden, 83 Ill. 354;Tedens v. Schumers, 112 Ill. 263. In Dyer v. Talcott, supra, and Kepperly v. Ramsden, supra, we held it to be error to refuse to give an instruction asked by the defendant which declared the burden of proof to be on the plaintiff to show that he or she was in the observance of due care at the time of the happening of the accident. In Tedens v. Schumers, supra, it was held to be error to refuse to give an instruction asked by the defendant which declared it to be a reguirement of the law that the plaintiff should make and establish his or her case by a preponderance of the evidence. Where the trial court throws aside all the instructions asked by one or both of the parties, and prepares written instructions of its own, the latter must fairly instruct the jury on all the legal questions involved in the case, and it must appear that no injury has been done to the defeated party by the refusal of the instructions asked by him. Wacaser v. People, (Ill.) 25 N. E. Rep. 564; Hill v. Parsons, 110 Ill. 107. In the case at bar there was no language in the instruction given by the court of its own motion which expressed the propositions of law contained in the refused instructions of the defendant, as above set forth. It is true that the first paragraph of the court's instruction contained these words: ‘If you believe from the evidence that, at the time of the accident, the plaintiff was exercising ordinary care for her safety, and that the defendant was guilty of negligence as charged, and that this caused the accident, then you will find the defendant guilty,’ etc. But this paragraph merely stated the proposition that the plaintiff was bound to exercise ordinary care...