Schmidt v. the Chicago

• Decision Date: 30 September 1876
• Citation: 83 Ill. 405,1876 WL 10359
• Parties: LOUISA SCHMIDT, Admx. etc.v.THE CHICAGO AND NORTHWESTERN RY. CO. et al.
• Court: Illinois Supreme Court

83 Ill. 405

1876 WL 10359 (Ill.)

LOUISA SCHMIDT, Admx. etc.

v.THE CHICAGO AND NORTHWESTERN RY. CO. et al.

Supreme Court of Illinois.

September Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. LAMBERT TREE, Judge, presiding.

This was an action on the case, by Louisa Schmidt, against the Chicago and Northwestern Railway Company and the city of Chicago, to recover damages for the death of Frederick Schmidt, the plaintiff's intestate, caused by the negligence of the defendants, as was claimed. A trial was had, resulting in a verdict and judgment in favor of the defendants, to reverse which this appeal was taken.

Mr. ALLAN C. STORY, and Mr. RUFUS C. KING, for the appellant.

Mr. A. M. HERRINGTON, Mr. EGBERT JAMIESON, and Mr. R. S. TUTHILL, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

It is first urged that the court erred in permitting each defendant to challenge peremptorily three jurors. The statute, chap. 110, sec. 49, p. 781, provides, that “In all civil actions, each party shall be entitled to a challenge of three jurors, without showing cause for such challenge.” This provision has been in force since 1827, if not longer, and, as we understand, during all that time it has been the general practice, and so understood by the entire profession, that each side to the case, without reference to the number of persons in each, in all civil cases, have but three peremptory challenges; and this is true whether there be one or a number of persons plaintiff or defendant.

In the case of Cadwallader v. Harris, 76 Ill. 370, this court held, that “the word ‘party,’ when applied to the defendant, can only means the person or persons named as defendant or defendants in the judgment.” The definition given to the word as defined by lexicographers, is, a plurality of persons: as, a political party; a select company invited to an entertainment; a company made up for a given occasion; in military affairs, a detachment or a small number of troops, etc. Thus it is seen that the word is applied as well to a number of persons as to a single individual.

The provision in the Criminal Code is, that every person arraigned for any crime, etc., shall be admitted to challenge, etc. Here, we have very different language from that used in the Practice Act governing civil suits. And this difference seems too marked to have been accidental. It must have been intended to produce a different practice in the two classes of cases. In criminal proceedings, each person, when arraigned, whether alone or with others, is to have the challenges specified; and in civil cases, the plaintiff or plaintiffs three peremptory challenges, and the defendant or defendants a like number. Hence we regard the practice, as unquestioned for half a century or more, to be a proper construction of the statute, and too firmly established to be shaken.

It is insisted, that the court below erred in giving instructions for appellees, and in modifying appellant's before they were given, and, also, in refusing to give others asked by appellant. The first of her refused instructions was properly rejected, as it assumed to instruct the jury as to what would be negligence, when it was their province to determine that question. It was a question for the jury to determine, whether there were brakemen enough on the train for ordinary purposes. The company are only bound to man their trains to meet the demands of the ordinary use of the road, unless they know or have reasonable grounds to believe that an unusual exigency will arise or exists that requires more brakemen than are usually necessary for the security of persons or property. If the company were employing the usual number of brakemen, and that was all that was ordinarily required, and the bill of exceptions does not state there was evidence tending to show that there was not the usual or necessary number, then this instruction was wrong.

The company are only required to guard and provide against the ordinary risks of the business. They are, for that purpose, bound to have their engines and trains under reasonable control, and should provide sufficient force for the purpose, either of brakemen or steam brakes. If two brakemen were all that the business reasonably required, they were not bound to have a third one on their train. It might have been that, if there had been a brakeman on each car, the train would have been stopped in a much shorter space than it was; but who can say there would ever be need for more than two in the future; and the bill of exceptions does not state that the evidence tended to show that there had ever been such a necessity before at that place.

The second refused instruction is inaccurate, and does not state the law. Whatever form of expression may have been employed by the court in defining the rule, it has never been intended to say, nor do we understand that we have said, that a mere preponderance of negligence on the part of a defendant will authorize a recovery. Where both parties are guilty of negligence, that of the plaintiff must be slight when compared with that of the defendant, and his must be gross.

As to the third refused instruction asked for appellant, the bill of exceptions does not state that there was evidence tending to show that the railroad company had omitted any duty in constructing and maintaining the crossing and approaches to the road at that place. The opening in the sidewalk, which it is claimed occasioned the fall which led to the death of Schmidt, although near to the railway track, may not have been a part...