Northern Line Packet Co. v. Binninger

• Decision Date: 30 September 1873
• Citation: 1873 WL 8645,70 Ill. 571
• Parties: NORTHERN LINE PACKET COMPANYv.ALFRED A. BINNINGER.
• Court: Illinois Supreme Court

70 Ill. 571

1873 WL 8645 (Ill.)

NORTHERN LINE PACKET COMPANY

v.ALFRED A. BINNINGER.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Jo Daviess county; the Hon. WILLIAM BROWN, Judge, presiding.

Mr. M. Y. JOHNSON, for the appellant.

Messrs. D. & T. J. SHEEAN, for the appellee.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This is an action on the case, by appellee against appellant, for injuries received by appellee in consequence of appellant's negligence. Trial was had in the Jo Daviess circuit court, on the 21st of November, 1872, resulting in a verdict for the plaintiff, and assessing his damages at $3000. The plaintiff refusing to remit any of this amount, the court granted a new trial, on the defendant's motion; and a second trial of the cause was had in the same court on the 25th of February, 1873. On this trial the jury found for the plaintiff, and assessed his damages at $2500. Motion for new trial was again made by the defendant, but it was overruled by the court, and judgment was rendered upon the verdict of the jury, and this appeal is now prosecuted to procure a reversal of that judgment. After the first, and before the second trial, defendant presented its petition, verified by affidavit, to the court, praying that the cause be removed for trial to the Circuit Court of the United States, for the Northern district of Illinois. The court overruled the motion, and the defendant, having excepted, insists that such ruling was error, for which the judgment below should be reversed.

In our opinion, the court below properly refused to remove the cause, on the petition filed. If, as seems to be claimed, the right of removal is predicated upon the act of Congress of July 27, 1868, it is a sufficient answer that the petition fails to show that the defendant is a “corporation organized under a law of the United States,” or that it has “a defense arising under or by virtue of the constitution of the United States, or any treaty or law of the United States,” as is required by that act. If, however, it is predicated upon the act of March 2, 1867, then, as the petition shows that some of the corporators are citizens of the State of Illinois, it was insufficient for that reason, for, in order to authorize the removal of the cause under that section, it should appear that all the corporators are non-residents of the State of Illinois. Case of The Sewing Machine Companies, 18 Wallace, 353.

On the cross-examination of D. C. Smith, captain of the defendant's boat, he was shown a written statement, purporting to have been made by himself, concerning the circumstances transpiring at the time plaintiff received the alleged injury. The statement is, in some respects, materially different from the version of the transaction given by the witness in his evidence. In response to a question propounded to him, the witness answered “that the statement was written by him the next spring after the accident. It was a general statement as to the accident, made at the request of the officers of the company. Did not go into particulars. It was not made until there was talk of a suit.”

This statement was read in evidence by the plaintiff against the defendant's objection, to which exception was taken; and it is argued that the court erred in admitting the evidence, because a proper foundation was not laid.

The objection is not tenable. The paper having been shown to the witness, and he, having admitted he wrote it, and explained his purpose in so doing, had his attention sufficiently called to the subject, and if the explanation given was not satisfactory, defendant was at liberty to have further examined him in this respect. This was neither done nor asked. The paper was competent evidence to go to the jury, as a contradictory statement made before the trial, by the witness, for the purpose of impeachment. 1 Greenleaf on Evidence, secs. 463, 465, and 467.

It is insisted that the court below erred in modifying the first of the defendant's instructions. The instruction, as asked, was as follows:

“In an action against a steamboat company, to recover damages resulting to the plaintiff, by reasons of injuries received by him in jumping from the defendant's boat, the plaintiff, being a passenger thereon, was bound to exercise ordinary prudence, and, before the jury can find the defendant guilty, they must believe, from the evidence, that the steamboat company was guilty of greater negligence than the plaintiff, and if the jury believe, from the evidence, that the plaintiff was guilty of negligence, or failed to exercise his judgment in jumping from the boat, so that a man of ordinary prudence, similarly situated, would not have made the leap, then the plaintiff is guilty of contributory negligence, and can not recover.”

The court modified it by adding: “Unless the jury believe, from the evidence, that the defendant was guilty of greater negligence than the plaintiff.”

The objection urged to the modification is, that it “misled the jury by a comparison of negligence.”

It was held in The Galena and Chicago Union Railroad Co. v. Dill, 22 Ill. 264, that the question of negligence is one of fact, which must be left to the jury for determination; that it depended to a great extent upon the surrounding circumstances of each case, and unless there were gross acts of carelessness, or a failure to observe some positive legal requirement, the court could not adopt any rule on the subject; that the jury must necessarily consider the relative situations of the parties, and all the attendant circumstances, and determine whether there has been negligence or whether the occurrence was purely accidental and without fault of either party. And this precise language was used again in I. and St. L. R. R. Co. v. Stables, 62 Ill. 316, and may now be regarded as the settled law of this court. The modification but repeats, at the end of the instruction, what is said in the body of the instruction as asked. It was there said, that to find the defendant guilty “the jury must believe, from the evidence, that the steamboat company was guilty of greater negligence than the plaintiff.” This as completely authorizes the jury to infer that if they believe, from the evidence, that the defendant was guilty of greater negligence than the plaintiff, they should find the defendant guilty, as does the modification added by the court.

The instruction, both as asked and as modified, taken by itself, would have been calculated to mislead the jury. The rule announced by this court, for many years, is, that where the plaintiff is guilty of negligence, to entitle him to recover, it must be slight and that of the defendant gross, when compared with each other. But it is not perceived that this instruction was any more objectionable by repeating, at the conclusion, the inaccurate language previously adopted by the defendant's attorney; and it is not admissible that a party shall be allowed to assign for error that which he has himself requested the court to do. Clemson et al. v. State Bank of Illinois, 1 Scammon, 45.

But, waiving this, the misleading feature in this instruction, as given, is such that it may have been corrected by subsequent instructions. It is strictly true that the plaintiff can not recover unless the defendant has been guilty of greater negligence than he has, and it is only from the implication arising from the omission to state how much greater the defendant's negligence should be, that it is calculated to mislead. Other instructions on the same side, therefore, stating what acts of negligence on the part...