#### Illinois Central Railroad Company v. Joseph Hammer.

1. Negligence—right of action in case of contributory negligence. Where a plaintiff has been guilty of negligence contributing to his injury, he can not recover unless the negligence of the defendant is gross, and not then unless the negligence of the plaintiff is slight in comparison to that of the defendant.

*5272. In a suit to recover damages for a personal injury against a railway company, where the plaintiff is chargeable with contributory negligence, it is erroneous to instruct the jury, in substance, that the plaintiff may recover, though guilty of slight negligence, if the defendant’s employees fell short, in any degree, of the exercise of that high degree of care as, under the circumstances, it was reasonable to have used to prevent the injury.

3. Instruction—oral. It is a violation of the statute for the court to instruct the jury orally as to the impropriety of certain modes of arriving at the amount of their verdict.

Appeal from the Circuit Court of Effingham county; the Hon. James C. Allen, Judge, presiding.

Mr. George W. Wall, for the appellant.

Messrs. Gilmore & White, for the appellee.

Mr. Justice Dickey

delivered the opinion of the Court:

Joseph Hammer recovered in the circuit court judgment against the railroad company for damages for an injury to his person, caused by a moving car of the company, which struck him while standing on the railroad track.

The servants of the company were “ switching.” South of the place of the injury is a switch, connecting a side-track with the principal track. While Hammer was passing on the principal track, his attention was attracted to an engine south of him, near the switch, and coming north. He observed that it took the main-track, and he stepped on the side-track to let the engine pass. It turned out that a car, (which had been detached, south of the switch, from the rear of the engine while in motion, and had been switched from the main-track to the side-track,) came rapidly northward on the side-track, approaching Hammer, while the engine passed to the north, on the principal track. The attention of Hammer was fixed upon the engine, and though it had passed him some distance before the car struck him, his attention was not called to the approaching car until too late for escape.

There is proof tending to show that the employees of the railroad company saw Hammer on the side-track so long be*528fore the collision, that, by prompt action, the car might have been stopped before reaching Hammer. The testimony tends to show that these employees had reason to believe that Hammer was about to get off the track, and did not have reason to think otherwise until it was too late to avoid the injury by stopping the car. There was also evidence tending to rebut these positions.

Hpon this state of proof as to this part of the case, theicourt, at the request of plaintiff, charged the jury, that “if, * * * after the servants of defendant saw the plaintiff in danger, they might (by delaying the business of the road, and by the use of such a high degree of care as, under the circumstances, it was reasonable to have used,) have avoided and prevented the injury, * * * then plaintiff may recover, even if guilty of slight negligence,” etc.

This instruction can not be approved. It may well be that the employees fell short of the degree of care “ which it was reasonable to have used,” and yet they may not have fallen so far short thereof as to make them justly chargeable with gross negligence. The rule has often been laid down, that where a plaintiff has been guilty of negligence contributing to the injury, he can not recover unless the negligence of the defendant is gross, and not then, unless the negligence of plaintiff is slight in comparison to that of defendant. This instruction violates the rule by saying, in substance, that plaintiff, though negligent, if his negligence be slight, may recover, if defendant’s employees fell short, in any degree, of that high degree of care which “it was reasonable to have used”—in other words, the court says, in substance, that any want of proper care will charge the defendant, if plaintiff’s negligence was but slight. This is not the law.

The question of contributory negligence is material in the case. The jury having been erroneously instructed on that question, the judgment must be reversed for that error.

It was a violation of our statute for the court to instruct the jury orally as toethe impropriety of certain modes of arriving at the amount of a verdict.

*529The judgment will be reversed, and the cause remanded for

a trial de novo.

Judgment reversed.