Chicago & Alton R. R. v. Gretzner

Citations

• 46 Ill. 74

Syllabus

<p>1. Witnesses-—weight given to testimony of. In determining the weight of testimony between two witnesses, the .preponderance should be -given to the one whose advantages for being correctly informed as to the matters in controversy are the best.</p> <p>2. Same.—credibility of. A jury cannot wilfully, or from mere caprice, disregard the testimony of an unimpeached witness. While they may judge of the credibility of a witness, they must exercise their judgment while doing so, and not their will merely.</p> <p>3. New Trial—verdict against the evidence. Where there is a strong preponderance over that, on which a verdict is based, such verdict will be set aside, and especially so, when it appears that injustice has been done.</p> <p>4. Negligence—where plaintiffs negligence concurs in producing injury. In an action for negligence, where the facts proved show great negligence on the part of the plaintiff, the proper question to be submitted to the jury is, did plaintiff’s negligence materially contribute to the injury, or rather was it so slight, and that of defendant so gross in comparison, as to incline the balance in plaintiff’s favor and entitle him to a verdict.</p> <p>6. Same—concerning carelessness of persons in crossing a railroad trade. It is the duty of every person about to cross a railroad track, to approach it cautiously and ascertain if there is danger in crossing, as all such persons are bound to know that such an undertaking is dangerous, and they must take all proper precaution to avoid accidents in so doing, otherwise, they cannot recover for an injury thereby received. Both parties must use care.</p> <p>6. Evidence—positive evidence when entitled to more weight than negative. It is an established rule, that positive evidence as to any fact not improbable in itself, is entitled to more weight, than negative evidence in relation to such fact.</p> <p>7. Negligence—comparative—doctrine of—modified. In the case of C. B. & Q. R. R. Co. v. Dewey, 26 Ill. 25