Ohio & Mississippi Railway Co. v. Porter

Citations

• 92 Ill. 437

Syllabus

<p>1. Evidence—declarations made by savant—whether admissible against the master. Where a railway company directed its servants to set fire to the dry grass, weeds, and other combustible material which had accumulated on the right of way, and in the carrying out of such orders the fire spread to the premises of an adjacent owner and destroyed his property, it was held, in a suit to recover for the damage thus occasioned, that any statements made by the company’s servants while engaged in the performance of the act, concerning the same, were admissible in evidence against the company, as a part of the res gestee.</p> <p>2. So, in such a suit it was held proper to ask a witness what any of the men in the employment of and then at work for defendant, said to him;—the question eliciting this answer: “He said, ‘we set the fire out to burn the grass on the right of way, and it got away from us.’ He was putting out the fire. Know he was employed and worked on railroad.”</p> <p>3. Neqmgenoe—comparative. In an action to recover for an injury alleged to have resulted from the negligence of the defendant, an instruction that the jury can not find for the plaintiff unless they “believe from the evidence that the injury complained of was caused by the negligence of defendant, and the plaintiff was without fault,” is stronger than the law will justify, as ignoring the doctrine of comparative negligence.</p> <p>4. Instruction construed, as to whether it usurps the province of the jury. In a suit to recover for injury resulting from fire communicated from the right of way of a railroad company, where it was set by the servants of the company, and by its direction, the jury were instructed: “If you believe, from the evidence, the servants of the defendant, for the purpose of clearing and freeing its right of way from dry grass, weeds and combustible matter, where the same run through the lauds of the plaintiff, put out fire on a day when the wind was high, and, in consequence of suc