The Chicago v. Payne

• Decision Date: 31 January 1869
• Parties: THE CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANYv.THOMAS PAYNE, Administrator of ALBERT PAYNE, deceased.
• Court: Illinois Supreme Court

49 Ill. 499

1869 WL 5152 (Ill.)

THE CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY

v.THOMAS PAYNE, Administrator of ALBERT PAYNE, deceased.

Supreme Court of Illinois.

January Term, 1869.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Adams county; the Hon. JOSEPH SIBLEY, Judge, presiding.

The facts in this case sufficiently appear in the opinion.

Mr. N. BUSHNELL, for the appellants.

Messrs. SKINNER & MARSH, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action brought by appellee, as administrator of Albert Y. Payne, to recover compensation, under the act of 1853, for the alleged killing of Payne by the negligence of the employees of appellants. It appears, from the evidence, that deceased was driving in a covered buggy upon the highway, and at the place where the road intersected with the railway of appellants, and came in contact with a passing train, and was instantly killed.

It is averred in the various counts of the declaration, that the railway company kept no warning board at the crossing; that no bell was rung or whistle sounded to give notice of the approach of the train, as required by law, and the engineer in charge of the train was drunk at the time the accident occurred. The company denied negligence on their part, and allege that there was a want of ordinary care on the part of deceased as he approached the railroad.

On the trial in the court below, there was a large amount of evidence introduced by each party, but inasmuch as the case will have to be submitted to another jury, we deem it improper to discuss its weight, or whether it supported the verdict. From a careful examination of the instructions given the jury, we are satisfied they do not announce the law to the jury so clearly and distinctly that we can see that they were not misled in arriving at their verdict. They seem to conflict, and to leave the jury a choice as to which class they should adopt. A party has the right to have the law applicable to his case fairly, clearly and distinctly stated in the instructions given to the jury. It is not sufficient to say the law in the case is correctly announced in a part of the instructions, if it is incorrectly stated in others.

This is the second of the plaintiff's instructions which the court gave to the jury:

“If the jury believe, from the evidence, that the defendant was guilty of gross negligence, under all the facts before them, in running its train to and over the common highway crossing, and thereby the death of Albert Y. Payne was caused, then, even though the deceased did approach such crossing with some and a less degree of negligence, while traveling on the highway, such negligence of the deceased would not destroy the plaintiff's right to recover in this action.”

The third instruction given for appellees is this:

“Even if the jury believe, from the evidence, that the deceased, Payne, did with some negligence, on a highway, approach the railroad crossing of the same, yet, if the defendant recklessly and with gross negligence, approached with its train to and crossed said highway, and thereby caused the death of the said Payne, as charged in the declaration, such negligence of deceased would not justify such gross negligence of the defendant.”

Appellee's fifth instruction is this:

“It was the duty of the defendant to operate its train in coming to and crossing said highway with due care and precaution, to avoid injury to persons passing on said highway, and if by sounding the whistle of the locomotive or ringing the bell thereof, in such manner as could have been reasonably done under the circumstances, injury to the deceased would have been prevented, and by wrongful failure so to do, the death of said Payne resulted as alleged in plaintiff's declaration, then the jury should find the defendant guilty.”

Appellee's sixth instruction is this:

“If the defendant had erected and maintained a post on its track, some 80 rods east from said highway crossing, at and from which its trains in approaching said crossing were accustomed, by whistle or ringing of a bell, to give notice of its approach to such crossing, and such whistle or ringing of bell would reasonably have prevented the accident in evidence, and on the occasion in evidence the defendant failed to ring a bell or sound a whistle, and that thereby, and the negligence of the defendant, the death of the deceased, Payne, was caused, as alleged in the declaration, then the jury should find defendant guilty.”

It is the established doctrine of this court that, although a plaintiff may be guilty of negligence, still the defendant will be held liable if his negligence is greater than that of the plaintiff. Where the negligence producing the injury is equal or nearly so, or that of plaintiff is greater, then he cannot recover. Although he may be guilty of negligence, yet if that of the defendant is greater, amounting to gross negligence, he...