Indianapolis & St. Louis Railroad v. Evans

Citations

• 88 Ill. 63

Syllabus

<p>1. Negligence—question of fact. In suits to recover damages caused by negligence, the question of the plaintiff’s negligence in failing to use proper care, and the degree of negligence in either party, is usually, if not always, a question of fact for the jury.</p> <p>2. Same—burden of proof1 In an action for an injury alleged to have been caused by negligence, the burden of proof rests on the plaintiff not only to show the negligence of the defendant causing the injury, but also to show he was exercising due care on his part. It is error to instruct the jury that the burden of proof to show negligence of the plaintiff rests on the defendant.</p> <p>3. It is true, where the negligence of the defendant is gross, the allegation in the plaintiff’s declaration of due care on his part is regarded as proved, where it is shown that the want of care on the part of the plaintiff, if any, was hut slight in comparison with that of the defendant. But, even in such case, the burden of proof is on the plaintiff to show he was free from such negligence as would defeat his action.</p> <p>4. Same—contributory. The rule in this State is, that where the negligence of the defendant is gross, the plaintiff may recover, although his own negligence may have contributed, in some degree, to the injury, provided his negligence was slight. It is error to instruct the jury that the plaintiff may recover unless his negligence, contributing to the injury, was equal to or greater .than that of the defendant.</p>