Chicago, Burlington & Quincy Railroad v. Avery

Citations

• 109 Ill. 314

Syllabus

<p>1. Instruction—construed, as whether assuming a fact or singling out certain facts. In an action on the ease against a railway company, to recover for a personal injury by its employee, based on alleged negligence in using a car the couplings of which were out of repair, the court instructed the jury that if they believed, from the evidence, that the car so used was the property of a company other than the defendant, and that such car was at the time of the alleged injury, and for several months next prior thereto had been, and was, regularly and daily running into and out of defendant’s yard by the permission of the. defendant, and that at the time of the alleged injury, and for several months next prior thereto, the said car was regularly and daily controlled and handled in the defendant’s yard by the defendant, with its own engine and employees, then it was the duty of the defendant to use ordinary diligence to keep said car in a reasonably safe condition for handling, or else require and see to it (if by the use of ordinary diligence the defendant could do so) that such car was kept by its owners in such reasonably safe condition: Held, that the objection to the instruction that it assumed as a fact that the car being out of repair, and being permitted to come into the yard in an impaired condition, was the cause of the injury to plaintiff, was not well founded. Nor was it subject to the objection of singling out and giving undue prominence to a part of the facts in the case, and in omitting reference to any care as required of the plaintiff.</p> <p>2. Where the purpose of an instruction is simply to define the duty of the defendant arising out of facts supposed, and it does not purport to contain a complete hypothesis on which a plaintiff suing for an injury caused by alleged negligence can recover, it is not necessary in such instruction to refer to the duty or supposed negligence of the plaintiff.</p> <p>3. Same—confining the charge to the negligence alleg