Chicago & Atlantic Railway Co. v. Carey

Citations

• 115 Ill. 115
• 3 N.E. 519
• 1885 Ill. LEXIS 532

Syllabus

<p>1. Practice—directing what the verdict shall be, on failure of proof by the plaintiff. If, when the plaintiff in a cause closes his case, there is no evidence tending to prove a material fact essential to a recovery, the court should, on request, instruct the jury that upon the evidence before them it is their duty to find for the defendant.</p> <p>2. So in an action by the personal representative of a person killed by passing cars of a railway company, if the proof shows the killing, only, and there is no evidence tending to show negligence on the part of the defendant or its servants, the court should, on request of defendant, instruct the jury to find for the defendant; but if there is any evidence from which such negligence may be inferred, no matter by which party introduced, the court should not take the case from the jury by instruction.</p> <p>3. Negligence—as to proof of use of due care. A person was killed in the night time by cars in motion. There was no eye-witness of the injury. The proof showed that about midnight the deceased left a store a few blocks distant from the place of the accident, and started on the sidewalk in the direction of his home, and was then duly sober, and that the place where he was killed was on his direct route home, and the accident must have happened very soon after he was last seen that night: Held, in an action to recover for his death, that the circumstances were such as might justify an inference whether or not the deceased used due care, and that direct proof on this point was not necessary.</p> <p>4. Allegations and proofs—in action to recover for death of a person, by next of kin, etc.—proof as to loss of support, under the pleadings. In an action by the administratrix of a deceased person to recover damages for negligently causing his death, the declaration averred that by the death of the deceased, (plaintiff’s husband,) the widow and minor children named were deprived of their support, and said minors of their mea