Chicago Burlington & Quincy Railroad v. Harwood

Citations

• 90 Ill. 425

Syllabus

<p>1. Declaration—statement of negligence in managing train. In an action against a railway company, to recover damages for the killing of the plaintiff’s intestate, through negligence and carelessness in the managing and running of a train of cars, the declaration should show in what such negligence and carelessness consisted, and not charge the same in general terms, without disclosing any specific acts or omissions.</p> <p>2. ' Bractice—how to object to insufficient declaration. An objection which goes to the sufficiency of the declaration, should be taken before trial, by demurrer. It is too late to urge such an objection, for the first time, upon error.</p> <p>3. Negligence—rule as to comparative. Although the plaintiff may have been guilty of slight negligence contributing to the injury complained of, it will not preclude a recovery, provided the negligence of the defendant, resulting in the injury, was gross in comparison with that, of the plaintiff.</p> <p>4. It is not sufficient, in a case of contributory and comparative negligence, to say in an instruction that the plaintiff may recover, though negligent., provided his negligence is slight in comparison with that of the defendant. Such an instruction should be refused.</p> <p>5. Same—neglect to ring bell or sound whistle—as evidence of gross negligence. The mere omission of a railway company to ring a bell or sound a whistle on a train approaching a highway crossing, where a collision occurs with a team while crossing the railroad track, can not be said, as a matter of law, to be evidence of gross negligence, so as to fix the liability of the company for the injury. To have that effect, it must be a just inference, from the evidence, that the injury was caused by reason of such neglect.</p> <p>6. Same.—of the burden of proof. The onus of establishing the relative degrees of negligence of the plaintiff or the deceased, and of the defendant, is not upon the latter. The gross negligence of the defendant is as