#### The Wabash Railway Company v. Ann M. Jones.

Contributory negligence.—The law of contributory negligence does not authorize a jury to weigh the degrees of negligence and find for the party least in fault. It is only when the plaintiff is free from fault, or his negligence is slight, and that of the defendant gross in comparison, that a recovery may be had. -

Appeal from the County Court of Vermillion county, the Hon. B. W. Hanford, Judge, presiding.

Opinion filed March 22, 1880.

Messrs. Mann, Calhoun & Frazier, for appellants.

Mr. W. B. Lawrence, for appellee.

Higbee, J.

This was a suit brought by appellee to recover the value of a cow killed on appellant’s road.

*608The court below, at the instance of appellee, gave to the jury the following instruction:

“ The court further instructs the jury for the plaintiff, that the law requires a railroad company, as well as an individual, to so use its property as not to injure that of others, and although you 'may believe, from the evidence, that plaintiff was at fault in permitting her cow to run at large, this does not itself license defendant to destroy her; and if you believe from the evidence that the defendant was guilty of a greater degree of negligence in killing the cow, than the plaintiff in permitting her to run at large, your verdict should be for the plaintiff, and in determining the degrees of negligence of the parties, you have the right to take into consideration all of the facts and circumstances developed by the evidence.”

The law of contributory negligence does not authorize a jury to weigh the degrees of negligence and find for the party least in fault.

It is only when the plaintiff is free from fault, or his negligence is slight, and that of the defendant is gross or willful as compared with his, that he is entitled to recover.

The instruction given would authorize a verdict upon the mere preponderance of negligence. It does not correctly state the law, and should not have been given.

For this error the judgment of the court below is reversed and the cause remanded for a new trial.

Reversed and remanded.