{ "id": 4865894, "name": "Chicago and Eastern Illinois Railroad Company v. Jeremiah O'Connor", "name_abbreviation": "Chicago & Eastern Illinois Railroad v. O'Connor", "decision_date": "1883-06-27", "docket_number": "", "first_page": "62", "last_page": "67", "citations": [ { "type": "official", "cite": "13 Ill. App. 62" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "71 Ill. 297", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "72 Ill. 347", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2714393 ], "opinion_index": -1, "case_paths": [ "/ill/72/0347-01" ] }, { "cite": "90 Ill. 425", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2756339 ], "opinion_index": -1, "case_paths": [ "/ill/90/0425-01" ] }, { "cite": "13 Minn. 30", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 746913 ], "opinion_index": -1, "case_paths": [ "/minn/13/0030-01" ] }, { "cite": "45 Cal. 323", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2335179 ], "opinion_index": -1, "case_paths": [ "/cal/45/0323-01" ] }, { "cite": "27 Vt. 370", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 740307 ], "opinion_index": -1, "case_paths": [ "/vt/27/0370-01" ] }, { "cite": "19 N. Y. 127", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 497685 ], "opinion_index": -1, "case_paths": [ "/ny/19/0127-01" ] }, { "cite": "27 Vt. 378", "category": "reporters:state", "reporter": "Vt.", "opinion_index": -1 }, { "cite": "37 Vt. 334", "category": "reporters:state", "reporter": "Vt.", "opinion_index": -1 }, { "cite": "106 Mass. 461", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 715849 ], "opinion_index": -1, "case_paths": [ "/mass/106/0461-01" ] }, { "cite": "44 Wis. 638", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8707950 ], "opinion_index": -1, "case_paths": [ "/wis/44/0638-01" ] }, { "cite": "74 Ill. 341", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2704745 ], "opinion_index": -1, "case_paths": [ "/ill/74/0341-01" ] }, { "cite": "92 Ill. 43", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2743795 ], "opinion_index": -1, "case_paths": [ "/ill/92/0043-01" ] }, { "cite": "93 Ill. 302", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2733142 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ill/93/0302-01" ] }, { "cite": "103 Ill. 512", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2803795 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ill/103/0512-01" ] }, { "cite": "88 Ill. 63", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5338363 ], "opinion_index": -1, "case_paths": [ "/ill/88/0063-01" ] }, { "cite": "88 Ill. 529", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5337341 ], "opinion_index": -1, "case_paths": [ "/ill/88/0529-01" ] }, { "cite": "85 Ill. 481", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2779936 ], "opinion_index": -1, "case_paths": [ "/ill/85/0481-01" ] }, { "cite": "4 Hun, 808", "category": "reporters:state", "reporter": "Hun,", "opinion_index": -1 }, { "cite": "35 N. Y. 9", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 16932 ], "opinion_index": -1, "case_paths": [ "/ny/35/0009-01" ] }, { "cite": "6 R. I. 211", "category": "reporters:state", "reporter": "R.I.", "case_ids": [ 4884671 ], "opinion_index": -1, "case_paths": [ "/ri/6/0211-01" ] }, { "cite": "47 Pa. 300", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 485547 ], "opinion_index": -1, "case_paths": [ "/pa/47/0300-01" ] }, { "cite": "43 Mo. 187", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 952603 ], "opinion_index": -1, "case_paths": [ "/mo/43/0187-01" ] }, { "cite": "52 Ill. 328", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "82 Ill. 198", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5314040 ], "opinion_index": -1, "case_paths": [ "/ill/82/0198-01" ] }, { "cite": "75 Ill. 106", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2698196 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ill/75/0106-01" ] }, { "cite": "92 Ill. 139", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2739723 ], "opinion_index": 0, "case_paths": [ "/ill/92/0139-01" ] }, { "cite": "20 Ill. 478", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2596867 ], "opinion_index": 0, "case_paths": [ "/ill/20/0478-01" ] }, { "cite": "72 Ill. 347", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2714393 ], "weight": 2, "pin_cites": [ { "page": "425" } ], "opinion_index": 0, "case_paths": [ "/ill/72/0347-01" ] }, { "cite": "103 Ill. 512", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2803795 ], "opinion_index": 0, "case_paths": [ "/ill/103/0512-01" ] } ], "analysis": { "cardinality": 551, "char_count": 11083, "ocr_confidence": 0.539, "pagerank": { "raw": 7.06018340890658e-08, "percentile": 0.4255358130918057 }, "sha256": "c1299a48b15857e439f4cb11b700e5b00064441249bc4944c7360a347a5c1bec", "simhash": "1:9036cafc5eb53681", "word_count": 2016 }, "last_updated": "2023-07-14T17:57:34.030277+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Chicago and Eastern Illinois Railroad Company v. Jeremiah O\u2019Connor." ], "opinions": [ { "text": "Bailey, P. J.\nTiie doctrine of comparative negligence prevailing in this State, has been so often and so precisely defined, that it has been reduced to a definite formula which may be stated thus: A plaintiff, though guilty of negligence contributing to the injury complained of, may still recover, if his negligence, is but slight, and that of the defendant gross in comparison therewith. In stating the rule to the jury in an instruction, no material element of this formula can he properly omitted. Where a plaintiff is guilty of contributory negligence, before he can recover, it must appeal-, not only that his negligence is slight and that of the defendant gross, but that they are so when compared with each other.. The element of comparison is as indispensable to a proper statement of the rule as are the degrees of the negligence of the respective parties. As said by this court in Moody v. Peterson, 11 Bradwell, 180: \u201c The doctrine of comparative negligence is founded upon the comparison of the negligence of the plaintiff with that of the defendant. This element of comparison is of the very essence of the rule.\u201d See, also, P. C. & St. L. R\u2019y Co. v. Shannon, Id. 222.\nIn the case of G. & C. U. R. R. Co. v. Jacobs, 20 Ill. 478, where the doctrine was first announced in this State, it is said: \u201cThe true doctrine, therefore, we think is, that in proportion to the negligence of the defendant should be measured the degree of care required of the plaintiff ; that is to say, the more gross the negligence manifested\" by the defendant, the less degree of care will be required of the plaintiff to enable him to recover, * * * and whenever it shall appear that the plaintiff\u2019s negligence is comparatively slight, and that of the defendant gross, he shall not be deprived of his action.\u201d In the numerous cases decided by the Supreme Court since the Jacobs case, in which an accurate statement of the rule has been attempted, the compai\u2019ison has been made an essential element of the rule. Thus, in E. St. L. P. & P. Co. v. High-tower, 92 Ill. 139, it is said: \u201c Where the plaintiff is guilty of contributory negligence, he can not recover, unless it appears that his negligence was slight, and that of the defendant gross in comparison with each other. Both terms must be stated to enable the jury to obtain a correct apprehension .of the rule.\u201d See, also, I. C. R. R. Co. v. Hammer, 72 Ill. 347; C. B. & Q. R. R. Co. v. Harwood, 90 Id. 425; I. C. R. R. Co. v. Hammer, 85 Id. 526; \u2018Quinn v. Donovan, Id. 194; C. & N. W. R\u2019y Co. v. Dimick, 96. Id. 42. In the very late case of C. B. & Q. R. R. Co. v. Johnson, 103 Id. 512, in which the doctrine of comparative negligence is reviewed, and its application restated and \"somewhat modified, the same rule is clearly recognized.\nIt is apparent from what has been said that the plaintiff\u2019s third instruction was erroneous, in that it failed to institute a comparison of the plaintiff\u2019s negligence with that of the defendant, as required by the rule. The comparative negligence of the parties was one of the principal matters of controversy at the trial, and the jury should have been accurately instructed as to the law applicable to that subject. The error was therefore material.\nThe court also erred in modifying the defendant\u2019s first instruction. The instruction, as asked, was, in substance, that if the plaintiff did not exercise ordinary care, and as a result was injured, he could not recover, unless the acts of the defendant were so willfully and wantonly reckless, as to authorize the presumption of an intention to injure generally. This, we think, stated the law with substantial accuracy. As said by the Supreme Court in C. B. & Q. R. R. Co. v. Johnson, supra: \u201cIn order to authorize the plaintiff to recover on the ground of mere negligence, as distinguished from the willful tort of the defendant, it must appear that the party injured exercised ordinary care, such as a reasonably prudent person will always adopt for the security of his person and property, to avoid the injury complained of.\u201d Tinder this rule, it is immaterial whether the want of ordinary care is manifested at the time of or prior to the injury, provided it hears such proximate relation to the injury that it may be said, in a legal sense, to have caused or materially contributed to it. If a defendant therefore convicts a plaintiff of such want of ordinary care at the time of the injury, he is not bound, in order to establish his defense, to also show a want of ordinary care prior to the injury, and vice versa. By modifying the instruction, however, the court held that the defendant, in order to sustain this defense, was bound to show that the plaintiff failed to exercise ordinary care at the time of the injury and prior thereto. This, in effect, imposed upon him the burden of establishing two complete defenses in order to defeat one action.\nFor the errors above pointed out, the judgment will he reversed and the cause remanded.\nJudirment reversed.", "type": "majority", "author": "Bailey, P. J." } ], "attorneys": [ "Mr. William Aumstbong, for appellant;", "Messrs. Hynes, English & Dunne, for appellee;" ], "corrections": "", "head_matter": "Chicago and Eastern Illinois Railroad Company v. Jeremiah O\u2019Connor.\n1. Comparative negligence.\u2014The element of comparison is as indispensable to a proper statement of the rule of comparative negligence as are the degrees of the negligence of the respective parties, and an instruction which fails to institute a comparison of the plaintiff\u2019s negligence with that of the defendant, is erroneous.\n2. Contributory negligence\u2014Instruction.\u2014An instruction that \u201cif you find from the evidence that the plaintiff did not exercise ordinary care to avoid being injured atthe time of the accident and prior theretoetc., is erroneous, for if a defendant convicts a plaintiff of such want of ordinary care at the time of the injury, he is not bound in order to establish his defense, tc also show a want of ordinary care prior to the injury and vice versa.\nAppeal from the Superior Court of Cook county; the Hon. Holl\u00edn S. Williamson, Judge, presiding.\nOpinion filed June 27, 1883.\nThis was an action on the case, brought by Jeremiah O\u2019Connor, against the Chicago and Eastern Illinois Railroad Company, to recover damages for a personal injury received by the plaintiff, in consequence of being run against, and struck by one of the defendant\u2019s locomotive engines. There was evidence at the trial tending to prove negligence on the part of the servants and employes of the defendant in charge of said engine, and there was also evidence tending to prove contributory negligence on the part of the plaintiff. The court, at the instance of the plaintiff, gave to the jury instructions defining a slight and gross negligence, and also, among other instructions, the following:\n\u201c3. The court instructs the jury, that while a person is bound to use reasonable care to avoid injury, yet he is not held to the highest degree of care and prudence of which the human mind is capable; and to authorize a recovery for an injury, he need not be wholly free from negligence, provided his negligence is but slight, and the other party be guilty of gross negligence as defined in these instructions; and in this case, although the jury may believe from the evidence that the plaintiff was guilty of some slight negligence contributing to the injury in question, yet if the jury further believe, from the evidence, that the plaintiff\u2019s negligence was but slight, and that the defendant\u2019s servants were guilty of gross negligence, as explained in these instructions, and that the injuries complained of as charged in the declaration were caused thereby, then the plaintiff is entitled to recover.\u201d\nAmong the instructions asked by the defendant was the following, which the court refused to give as asked, but modified the same by inserting therein the words in italics, and gave the same to the jury as modified.\n\u201c1. If you find, from the evidence, that the plaintiffdidnot exercise ordinary care, to avoid being injured, at the time of the accident and prior thereto, and as a result, he was injured, you should find for the defendant, unless you find the acts of the defendant were so willfully and wantonly reckless, as to authorize the presumption of an intention to injure generally.\u201d\nProper exceptions were preserved by the defendant to the rulings of the court in giving and refusing instructions, and thereupon the jury found the defendant guilty, and assessed the plaintiff\u2019s damages at $5,000, and the court, after denying the defendant\u2019s motion for a new trial, gave judgment on the verdict.\nMr. William Aumstbong, for appellant;\nthat employes are presumed to contract against the hazards incident to the service, cited C. & N. W. R\u2019y Co. v. Donahue, 75 Ill. 106; C. B. & Q. R. R. Co. v. Avery, 8 Bradwell, 133; R. R. I. &. St. L. R. R. Co. v. Delaney, 82 Ill. 198; C. v. N. W. R\u2019y Co. v. Sweeny, 52 Ill. 328.\nThe omission of a railroad company to give the signal required by law at a public crossing is not evidence of negligence in a suit by a person injured upon the track beyond such crossing: 1 Thompson on Negligence, 452; Rohback v. P. R. R. Co. 43 Mo. 187-194; P. & R. R. R. Co. v. Spearen, 47 Pa. 300; O\u2019Connor v. P. & W. R. R. Co. 6 R. I. 211; Ernst v. Hudson R. R. R. Co. 35 N. Y. 9; Elwood v. N. Y. Cen. & H. R. R. R. Co. 4 Hun, 808; I. C. R. R. Co. v. Modglin, 85 Ill. 481; P. P. & J. R. R. Co. v. Siltman, 88 Ill. 529.\nAppellee must aver and affirmatively prove on the trial that he was exercising due care at the time he was injured: C. & N. W. R\u2019y Co. v. Thorson, 11 Bradwell, 631; I. &St. L. R. R. Co. v. Evans, 88 Ill. 63; C. B. & Q. R. R. Co. v. Johnson, 103 Ill. 512; C. & N. W. R\u2019y Co. v. Donahue, 75 Ill. 106.\nAs to definition of slight negligence: C. & N. W. R\u2019y v. Thorson, 11 Bradwell, 631; C. B. & Q. B. R. Co. v. Johnson, 103 Ill. 512.\nAs to fellow servants: C. & N. W. R\u2019y Co. v. Moranda, 93 Ill. 302; C. & T. R. R. Co. v. Simmons, 11 Bradwell, 147; Clark v. C. B. & Q. R. R. Co. 92 Ill. 43.\nMessrs. Hynes, English & Dunne, for appellee;\nthat an engineer and track repairer are not fellow servants, cited P. Ft. W. v. C. R. R. Co. v. Powers, 74 Ill. 341; Moranda v. C. & N. W. R\u2019y Co. 93 Ill. 302.\nAs to signals at crossings: Schultz v. Chicago, etc. R. R. Co. 44 Wis. 638; Goodfellow v. Boston R. R. Co. 106 Mass. 461; Wakefield v. C. & P. R. R. Co. 37 Vt. 334; Sawyer v. R. & B. R. R. Co. 27 Vt. 378.\nWhere one railroad company, A, runs its cars on the tracks of another company, B, the employes of the former are not fellow servants of the employes of the latter: 1 Thompson on Negligence, 1043; Smith v. N. Y. etc. R. R. Co. 19 N. Y. 127; Sawyer v. Rutland, etc. R. R. Co. 27 Vt. 370; Taylor v. U. P. R. R. Co. 45 Cal. 323; Carroll v. Minn. V. R. R. Co. 13 Minn. 30; Warburton v. G. W. R. R. Co. L. R. 2 Exch. 30.\nAs to slight negligence: C. B. & Q. R. R. Co. v. Harwood, 90 Ill. 425; City of Winchester v. Case, 5 Bradwell, 489; E. St. L. P. Co. v. Hightower, 6 Weekly Jurist, 408; President v. Carter, 2 Bradwell, 34; I. C. R. R. Co. v. Hammer, 72 Ill. 347.\nAs to excessive verdict: Monka v. N. C. Rolling Mill Co. T. W. & W. R. R. Co. v. Fredericks, 71 Ill. 297." }, "file_name": "0062-01", "first_page_order": 66, "last_page_order": 71 }