Toledo, Wabash & Western Railway Co. v. Grable

Citations

• 88 Ill. 441

Syllabus

<p>1. Negligence—by parents of injured child. The parents of a child of too tender age to exercise care, having its custody, are chargeable with the duty of exercising reasonable care for its personal safety, and if for the want of such care it is killed by a passing train of cars, no recovery can be had on behalf of the next of kin.</p> <p>2. Same—comparative. AVhere there is negligence on the part of an injured party, or on the part of those charged with the care of the injured party, as, a child of tender years, contributing directly to produce the injury, there can be no recovery, unless such negligence is slight, and that of the defendant is gross in comparison, in regard to that which produced the injury. It is not sufficient, that the defendant may have been guilty of a greater degree of negligence in respect to the producing cause of the injury.</p> <p>3. Where a child of twenty-eight months of age was suffered by its parents to wander upon a railroad track, where it was killed by a passing train on ns usual time, or nearly so, and there was no fence or inclosure to prevent the child from going from its parents’ house upon the track, and the child was not looked after until the whistle of the locomotive was sounded, it was doubted whether any recovery could be had by the next of kin.</p> <p>4. Instruction—when great accuracy is required. In a suit against a railway company, to recover damages for the death of a child of tender -years, if the evidence makes it a debatable point whether its parents exercised reasonable care for its safety, the jury ought to be most accurately instructed in relation to the doctrine of comparative negligence.</p>