Illinois Central Railroad v. Hetherington

Citations

• 83 Ill. 510

Syllabus

<p>1. NEGuiGEsrcE—instruction, excluding negligent acts of deceased. An instruction which, in effect, excludes from the consideration of the jury any negligence of the deceased, except the fact of her being a trespasser upon the track of the defendant’s railroad, in an action by her personal representative to recover damages for her death by being struck by an engine, where the proof tends to show negligence on her part in other respects, is erroneous, as being calculated to mislead.</p> <p>2. Same—recovery, when plaintiff is guilty of gross negligence. If the conduct of one killed while walking upon a railroad track amounts to gross negligence, no recovery can be had of the company, unless it was guilty of wilful or criminal negligence.</p> <p>3. Same—jury not confined to any one particular act. In determining whether a person killed while traveling upon a railroad track was guilty of negligence contributing materially to the injury, and the degree of such negligence, as compared with that of the company, the court, in its instructions, should not confine the jury to the consideration of the fact that the deceased was simply a trespasser, but they should also consider her each and every other act and omission proved, materially contributing to the injury.</p> <p>4. Same—when that of injured person prevents a recovery. Where a person walking along the track of a railroad in a city, without right, is struck by a train coming in,-and killed, at a place not a public crossing, and it appears such person used no precaution to guard against danger, although he knew he was in a place of danger, not even looking back to see if a train was approaching, no recovery can be had, notwithstanding the company may have been guilty of negligence in running the train at a speed greatly in excess of that fixed by ordinance.</p> <p>5. The fact that persons residing in the locality where an accident occurs have been in the habit of traveling upon the right of way of a railway company, w