Chicago & Alton Railroad v. Fietsam

Citations

• 123 Ill. 518
• 15 N.E. 169

Syllabus

<p>1. Negligence—due care required, of the plamiiff. In an action by an administrator to recover damages for the death of his intestate through negligence of the defendant, the plaintiff can not recover, unless, at the time of the accident, the deceased was in the exercise of due care for his own safety. If the deceased was guilty of negligence which materially contributed to the injury, no recovery can be had.</p> <p>2. Same—am. instruction, on the question of due care, construed. In such case the court instructed the jury, that if they believed, from the evidence, that G. was killed in the manner stated in the declaration, through the fault of the defendant’s employes in negligently leaving a switch open, and was exercising due care himself at the time, or if the jury believed, from the evidence, that G. was guilty of slight negligence contributing to his death and that the employes of the defendant were guilty of gross negligence contributing to the death of G., but that the negligence of G. was slight and that of defendant’s employes gross, when compared with each other, the plaintiff was entitled to recover, and the verdict should be accordingly: Held, that the instruction would not bear the construction that the plaintiff might recover although the deceased was guilty of negligence materially contributing to the injury, but that the second ground of recovery must be understood as being, like the first ground, predicated upon the fact that the deceased was in the exercise of due care for his own.safety.</p> <p>3. Instruction—modification, of a correct instruction, which does not ■change its meaning. In an action by the personal representative of a deceased person, against a railway company, to recover for the death of the deceased, alleged to have been the result of the defendant’s negligence, the defendant asked this instruction: “If the jury believe, from the evidence, that the deceased, G., was guilty of more than slight negligence, then the jury will find f