Willard v. Swansen

Citations

• 126 Ill. 381
• 18 N.E. 548

Syllabus

<p>1. - Negligence—ordinary care by the plaintiff—an essential element. In an action to recover for injuries resulting from the alleged negligence of the defendant, the plaintiff can not recover unless it appears, from the evidence, that he exercised ordinary care,—such as a reasonably prudent person will always adopt for his own safety. The fact that the defendant may have been guilty of gross negligence, does not, of itself, authorize a recovery. A duty always rests on the injured party to exercise ordinary care ; and unless that duty has been observed, a recovery can not be had,—in other words, ordinary care is an essential •element on the part of the injured party to authorize a recovery.</p> <p>2. Same—the rule as to comparative negligence—whether correctly stated. An instruction, in substance, that the plaintiff, although guilty of some negligence, may recover, if the negligence of the defendant was gross, and the negligence of the plaintiff was slight in comparison' with that of the defendant, is not a correct statement of the doctrine of •comparative negligence. In order to state the rule correctly, the element of ordinary care required of the plaintiff should be given.</p> <p>3. Instruction—error obviated by others in the series. In an action to recover for an injury resulting from negligence, the court instructed the jury, that although they might find, from the evidence, that the plaintiff was guilty of some negligence contributing to the injury, and was not free from negligence on his part, this would not prevent a recovery, provided the defendant was guilty of gross negligence, so that plaintiff’s negligence was slight in comparison with defendant’s, which was gross. This was held erroneous, but as the plaintiff’s first instruction required the jury to find, as a condition to a recovery, that the plaintiff exercised ordinary care, and the same doctrine was distinctly .announced in four of the defendant’s instructions stating the rule correctly, it was h