Toledo, St. Louis & Kansas City Railroad v. Cline

Citations

• 135 Ill. 41
• 25 N.E. 846

Syllabus

<p>1. Negligence—contributory and comparative negligence—application of the rule—ordinary care. The doctrine of comparative negligence has application only in a case where the plaintiff has exercised ordinary care.</p> <p>2. Same—of instructions in relation to ordinary care, and comparative negligence. In an action against a railway company to recover for damages resulting from a collision at a highway crossing, an instruction, as modified by the court, told the jury, that if they believed, from the evidence, that the plaintiff failed to exercise ordinary care, and if by the exercise of such ordinary care he could have avoided the injury, then he could not recover, unless it was further believed, from the evidence, that the defendant was guilty of gross negligence: Held, that the necessary implication from the latter part of the instruction was, that gross negligence on the part of the defendant would obviate the necessity of ordinary care on the part of the plaintiff, and that in that regard it was erroneous.</p> <p>3. In the same case, the court instructed the jury, on behalf of the plaintiff, that they had “the right, under the law, to compare the negligence of the plaintiff and defendant, * * * although the jury may believe, from the evidence, that the plaintiff was not wholly without negligence, yet if you further believe, from the evidence, that the defendant was guilty of gross negligence while the plaintiff was only guilty of slight negligence, then such slight negligence on plaintiff’s part will not prevent a recoveryHeld, that the instruction was equivalent to informing the jury, as matter of law, that the plaintiff had exercised ordinary care, and submitting to them the question, only, of the gross negligence of the defendant.</p> <p>4. Same—duty of persons approaching a railway crossing. The omission of a person approaching a railway crossing to look or listen for a coming train does not necessarily, and as a matter of law, constitute negligence.</p> <p>