The Toledo v. John H. Ingraham.

• Decision Date: 31 January 1875
• Citation: 1875 WL 8312,77 Ill. 309
• Parties: THE TOLEDO, WABASH AND WESTERN RAILWAY CO.v.JOHN H. INGRAHAM.
• Court: Illinois Supreme Court

77 Ill. 309

1875 WL 8312 (Ill.)

THE TOLEDO, WABASH AND WESTERN RAILWAY CO.

v.JOHN H. INGRAHAM.

Supreme Court of Illinois.

January Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McLean county; the Hon. THOMAS F. TIPTON, Judge, presiding.

Mr. O. T. REEVES, for the appellant.

Messrs. HUGHES & MCCART, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action on the case, brought by John H. Ingraham, in the circuit court of McLean county, against the Toledo, Wabash and Western Railway Company, to recover for injuries received, caused by falling from a car and being run over by several cars in the train.

It appears, from the evidence contained in the record, that, on the 15th day of October, 1872, appellee was a brakeman on a freight train, in the employ of appellant. When near Boswell station, he was directed by Roach, the conductor, to go forward and cut the train. In obedience to the order, appellee went over the train, walking on top of the cars, descended the ladder of one car, pulled the pin, and then started up the ladder of the other car, when the ladder gave way. Appellee was thrown upon the track, and five or six cars passed over him. Five of his ribs were broken, one foot split open, one arm broken, and he was severely injured in the abdomen. In consequence of the injuries received, his lower parts became paralyzed.

In fact, it is clear, from the evidence, that, before the accident, appellee was a stout, able-bodied man, and that, by the accident, he has been rendered a cripple for life, and unfit for manual labor.

Upon the trial in the circuit court, the jury returned a verdict in favor of appellee, and fixed his damages at $5000. The court overruled a motion for a new trial, and rendered judgment upon the verdict.

The appellant brings the record here, and relies upon three grounds to secure a reversal of the judgment--

First--That the court erred in giving appellee's first instruction.

Second--That appellant's first instruction was improperly refused.

Third--That the court erred in overruling appellant's motion in arrest of judgment.

The instruction given for appellee, to which exception is taken, is as follows:

“The duty of furnishing safe cars to its employees, to be used by them in working on the railroad, is a duty the law imposed upon the defendant, and it is not one that can be delegated to servants, so as to avoid liability on the part of defendant; and if he (defendant) neglected and failed to furnish a safe car, but, on the contrary, did furnish a car that was out of repair in one of the rounds of the ladder on such car, and that, by reason of such defect, the plaintiff, while using ordinary care as a brakeman, was, in the discharge of his duty, injured, then the jury should find the defendant guilty, if the jury further believe, from the evidence, that the plaintiff did not know of such defect, and could not have known of the same by the use of reasonable care and precaution. If the jury finds the issues for the plaintiff, they may assess his damages at such sum as will compensate for the injuries and damages proven, if any have been proven, in loss of time and expenses, pain and injury sustained in the past, and for any permanent or lasting injury sustained to his physical system.”

The first objection made to this instruction is, it is claimed that it does not direct the jury to the evidence, or tell them they are to believe certain facts from the evidence.

When the whole instruction is considered, we do not regard the objection well taken. While it is true, the instruction was not skillfully drawn, yet it contains nothing calculated to mislead the jury, or to predicate a verdict on facts not in evidence.

Where a jury are instructed, if certain facts are true, provided they further believe, from the evidence, certain other facts exist, a jury of ordinary intelligence would surely conclude that they must believe the facts first enumerated, from the evidence, as well as those last mentioned.

A jury must base their verdict upon the facts as shown by the evidence introduced before them; and it would be clearly erroneous for the court to instruct them in such a manner that they would be at liberty to believe certain facts, important to a proper decision of the issue, from any source other than the evidence; and were this instruction in fact liable to the objection taken, it could not be sustained.

It is also urged, that the instruction was erroneous, for the...