Chicago, Burlington & Quincy Railroad v. Gregory

Citations

• 58 Ill. 272

Syllabus

<p>1. Evidence—in an action to recover for the death of a pm'ty caused dy the negligence of the defendant. Before a recovery can be bad in such a case, it is necessary to prove, first, that the accident was occasioned b}' the wrongful act, neglect or default of the defendant, and second, that the party injured was in the exercise of due and proper care, and tli,at the injury was not the result of his own negligence and want of proper precaution.</p> <p>2. But while it is the general rule, that it must affirmatively appear, in such cases, that the party injured was in the exercise of due care and caution, yet this material fact may be made to appear by circumstantial, as well as by direct evidence.</p> <p>3. Ntcw trial—verdict against the evidence. The rule is, where there is evidence from which the jury could properly find their verdict, it will not be disturbed, although the evidence might, in the opinion of the appellate court, justify a different construction.</p> <p>4. But if there is a total failure of evidence, or if the verdict is manifestly against the weight of the , evidence, it is the duty of the court to award a new trial.</p> <p>5. Negligence—in railroads. In an action against a railroad company to recover for the death of the plaintiff’s intestate, alleged to have been occasioned by the negligence of the company, it appeared the deceased was a fireman on the locomotive of the company, and while passing a station in the night time, he was struck and killed. The circumstances showed that he was acting in the line of his duty, looking out for signals, and while so doing, and in the exercise of due care and caution, he was struck by a “mail-catcher” which had been placed near the track by the company. Two other accidents had previously occurred from the same cause, of which the company had notice: Held, the company was guilty of gross negligence in having omitted to place the “ mail-catcher ” a safe distance from the track.</p> <p>6. Same—of comparative ne