Missouri Furnace Co. v. Abend

Citations

• 107 Ill. 44
• 1883 Ill. LEXIS 224

Syllabus

<p>1. Appeai—reviewing controverted facta. In an action on the case to recover for the death of the plaintiff’s intestate, occasioned by the alleged negligence of the defendant, in which the plaintiff recovered, and the judgment is affirmed by the Appellate Court, it will be assumed that whatever the evidence tended to prove was found in favor of the plaintiff, and such finding is conclusive upon this court.</p> <p>2. Negdigence—of evidence as to due care on the part of the plaintiff, in- cm action to recover for personal injury. In an action to recover damages for a personal injury alleged to have resulted from the negligence of the defendant, the law does not always require positive proof of due care and diligence on the part of the plaintiff. Under certain circumstances it may be taken for granted that he observed usual and ordinary care for his personal safety. So where an engineer upon a railroad, who was killed by defects in a foot-board', was shown to be a competent and careful servant in his employment, and he was seen a few moments before his death in the observance of due care, it was held, that it could not properly be said there was an entire want of evidence on this branch of the case.</p> <p>3. Same—negligence as a question of fact. It is a question of fact whether a servant is guilty of negligence by continuing to use defective machinery for a reasonable time for the master to make the needed repairs, after his promise to do so.</p> <p>4. Instruction—as being based upon evidence. If there is evidence in a case tending to prove that a party, at the time of receiving an injury, observed ordinary care, that will be sufficient to warrant the giving of an instruction based upon that hypothesis.</p> <p>5. Master and servant—liability of the former for inju/ries received by the latter in his service—of their relative duties. A party entering the service of a railroad company, or other corporation using locomotives as propelling power, assumes by his contract