Pennsylvania Co. v. Marshall

• Decision Date: 25 January 1887
• Parties: PENNSYLVANIA CO. v. MARSHALL, Adm'r.
• Court: Illinois Supreme Court

119 Ill. 399

10 N.E. 220

PENNSYLVANIA CO.

v.MARSHALL, Adm'r.

Supreme Court of Illinois.

January 25, 1887.

Error to appellate court, First district.

Action by James Marshall's administrator, appellee, against the Pennsylvania Railway Company, appellant, to recover damages for negligence causing the death of his intestate. At the trial the defendant asked for the following instructions, among others: ‘(9) If the jury believe from the evidence that the train in question, at and before the time of the accident to the deceased, was being run in a manner reasonably proper, under all the circumstances shown by the evidence, then the jury should find for the defendant.’ This instruction was modified and given as follows, the words in small capitals being the ones added by the court: ‘(9) If the jury believe from the evidence that the train in question, at and before the time of the accident to the deceased, was being run in a manner reasonably proper, under all the circumstances shown by the evidence, AND THAT THE DECEASED CAME TO HIS DEATH BY REASON OF HIS OWN CARELESSNESS AND NEGLIGENCE, AND NOT THE NEGLIGENCE OF THE DEFENDANT, then the jury should find for the defendant.’Willard & Driggs

, for plaintiff in error.

Morton Culver and Simon P. Douthart, for defendant in error.

CRAIG, J.

This was an action, brought by Henry Marshall, administrator, against the Pennsylvania Company, to recover damages on account of the death of his son, James Marshall, who was run over by the company's train of cars on the twenty-seventh day of March, 1881, at the corner of Grove and Eighteenth streets, in the city of Chicago. The plaintiff based his right of recovery on the negligent management of the train by the servants of defendant, and on a trial before a jury he recovered a judgment for $2,000, which, on appeal, was affirmed in the appellate court. In this appeal the only question relied upon in the argument to reverse the judgment is the alleged erroneous ruling of the superior court in the instructions to the jury. The instructions given for the plaintiff are very brief, and are as follows: ‘(1) If the jury believe from the evidence that the plaintiff has made out his case as laid in his declaration, they must find for the plaintiff. (2) If the jury find from the evidence, and under the instructions of the court, that the defendant corporation is 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 such damage as the jury may deem, from the evidence and proof, a fair and just compensation therefor, having reference only to the pecuniary injuries resulting from said death to the said plaintiff and next of kin, not exceeding the amount in the declaration. Sorrow or grief for the deceased, or any pain caused to the next of kin by the manner of his death, is not to be considered by the jury, and the pecuniary value of the life of the deceased to the next of kin, himself surviving, is all for which damages can be assessed.’ No fault is found with the first one given; but it is contended that the second is erroneous, on the alleged ground that it ignores entirely the question of comparative negligence. It is apparent from the language of the instruction that its object was not to lay down any rule of law for the consideration of the jury upon the doctrine of negligence; but the purpose was to inform the jury as to the measure of damages, in case they arrived at the conclusion from the evidence that the plaintiff was entitled to recover, and for this purpose we perceive no objection to the instruction. In the first instructionthe jury was told that, if they believed from the evidence that the plaintiff had made out his case as laid in the declaration, they...