Chicago, Burlington & Quincy Railroad v. Van Patten

Citations

• 74 Ill. 91

Syllabus

<p>1. Error will not always reverse. Where the right is so clearly with the successful party that the result would have followed had the jury been properly instructed, the judgment will not be reversed, but where the right of the party is not clear, and there is error in the instructions which may have influenced the jury, a reversal will be had, and the cause remanded.</p> <p>2. Negligence—what is, on the pa/rt of one hilled by a locomotive. Where a person is riding in a wagon drawn by a team under his control, and is familiar with a railroad crossing, and from the point where the wagon road turns to cross the track, distant about four rods, an approaching train is plainly visible for a distance sufficient to enable him to check his team before crossing, and he does not look in the direction of the approaching train, but keeps his head.averted to an opposite direction, and drives upon the track, where he is killed, he will be guilty of contributory negligence.</p> <p>8. Same—right of recovery in case of mutual negligence. Where a party killed was guilty of contributory negligence, his personal representative cannot recover unless the negligence of the defendant contributing to cause the death, was gross, in comparison with which the negligence of the intestate was slight.</p> <p>4. Same—presumption as to negligence of plaintiff’s intestate. In an action against a railway for causing the death of a person through negligence, where the proof clearly shows negligence on the part of the deceased, it is error to instruct the jury that the law presumes that he exercised proper care and caution on the occasion. If there was no proof of his negligence, such an instruction might be proper.</p> <p>5. Presumption — not indulged against proofs. Where there is clear proof of a fact, no presumptions can be indulged except such as arise upon the proof.</p> <p>6. Special verdict — instructions in respect to. If the court exercises its discretion in instructing the jury to find spe