The Indianapolis v. Evans

• Citation: 1878 WL 9805,88 Ill. 63
• Parties: THE INDIANAPOLIS AND ST. LOUIS RAILROAD COMPANYv.MARGARET A. EVANS.
• Decision Date: 31 January 1878
• Court: Illinois Supreme Court

88 Ill. 63

1878 WL 9805 (Ill.)

THE INDIANAPOLIS AND ST. LOUIS RAILROAD COMPANY

v.MARGARET A. EVANS.

Supreme Court of Illinois.

January Term, 1878.

APPEAL from the Circuit Court of Cook county; the Hon. OLIVER L. DAVIS, Judge, presiding.

Mr. B. W. HANNA, Mr. C. B. STEEL, and Messrs. WILEY, PARKER & NEAL, for the appellant.

Mr. HORACE S. CLARK, for the appellee. Mr. JUSTICE DICKEY delivered the opinion of the Court:

This is an action upon the case, by appellee, in which judgment went against appellant for damages, for an injury to appellee, alleged to have been caused by the negligence of appellant.

The circumstances proven, tend to show want of care on the part of appellee. The question of negligence in failing to use proper care, and the degree of such negligence in either party, is usually, if not always, a question of fact for the jury, under proper instructions from the court.

In this case, two of the instructions given to the jury by the court, at the request of plaintiff, are erroneous, and tended to mislead the jury. The third instruction given was as follows:

“The court instructs the jury, that the burden of proof of negligence on the part of the defendant is on the plaintiff, but when negligence on the part of plaintiff is set up as a defense, then the burden of proof to establish such negligence is on the defendant, and they must prove the same by a preponderance of evidence.”

This is not a correct statement of the law. To recover for injuries alleged to have been caused by the negligence of defendant, it is necessary that plaintiff shall allege in the declaration, and prove on the trial, that plaintiff was exercising due care. The plea of not guilty puts this allegation in issue, and the burden of proving due care on the part of plaintiff rests upon the plaintiff. It is true, that in cases where the negligence of defendant is gross, the allegation of due care by the plaintiff is regarded as proven where it is shown that the want of care on the part of the plaintiff, if any, is but slight, in comparison with the negligence of defendant. The burden of proof, however, is on the plaintiff, even in such case, to establish the freedom of plaintiff from such negligence as would defeat the action.

The seventh instruction, given at request of plaintiff, was as follows: “It is the duty of a railroad company to take all reasonable precaution for the protection of life and limb from injuries by their cars; and if such precautions...