Lake Shore & Michigan Southern Railway Co. v. Hessions

Citations

• 150 Ill. 546
• 37 N.E. 905
• 1894 Ill. LEXIS 1641

Syllabus

<p>1. Negligence — limiting plaintiff’s negligence to exact time of injury. Where a party is injured by a moving train of oars while upon or attempting to cross railroad tracks, it is error to limit the requirement that he should be in the exercise of ordinary care, to the exact time of' the injury. The question whether he exercised ordinary care in going upon the track is always necessarily implied.</p> <p>2. Slight negligence is not necessarily incompatible with due and ordinary care, hence an instruction requiring the jury to believe, from the evidence, that the plaintiffs intestate was in the exercise of ordinary care for his own safety, and that injury resulted from the negligence of the defendant, is not erroneous.</p> <p>3. Same — comparative. The doctrine of comparative negligence, as announced in the earlier cases, is no longer the law of this State. The doctrine announced in the later decisions requires as a condition to a recovery by the plaintiif, that the person injured be found iu the exercise of ordinary care for his own safety, and that the injury result from the negligence of the defendant.</p> <p>4. Suevxvokship- — action for causing death — when it arises — next of kin. The statute giving a right of action for wrongfully causing the death of another, is exclusively for the benefit of the widow and next of kin of the deceased. The fact of survivorship of a widow or next of kin is an essential element of the cause of action, and it is therefore indispensable that it shall be alleged and proved.</p> <p>5. Bill op exceptions — incorporating in the transcript of the record. The original bill of exceptions can not be used as a part of the transcript of the record, on appeal, without agreement of the parties.</p> <p>6. Same — stipulation to use original hill of exceptions in the transcript. The parties to a suit filed in the office of the clerk of the circuit court, in the cause, this stipulation: “It is hereby stipulated and agreed that the original bil